Thursday, April 12, 2018

Laws, Norms, and War: We Have Met the Enemy (again)...

As President Trump continues to flirt with the idea of hitting Syria with missiles, some in Washington have started asking whether the President has the legal authority to do so. This question makes little sense to most Americans, who have long assumed that Presidents (whom we refer to as "Commander-in-Chief" more often than by any other title) can do whatever the heck they want with the US military.

But the question does bear consideration. Lame-duck Speaker Paul Ryan opined today that the President doesn't need any legal authority beyond the Authorization to Use Military Force (AUMF) passed by Congress in the wake of 9/11. Others have pointed out that that particular AUMF is a little long in the tooth (nearly 17 years), and it's stretching the original meaning well past any reasonable interpretation of the original intent to suggest that an authorization to go after al Qaeda and its affiliates somehow covers military strikes on the Syrian government, which hates AQ and its ilk.

The Framers of the Constitution never intended the President to be the one to decide whether the US goes to war. The power to declare war is listed under the Enumerated Powers of Congress (Article I, Section 8). That same section also gives Congress the power to create (or not) an Army and a Navy. For all that conservatives in the vein of the late Antonin Scalia like to talk about the Doctrine of Original Intent, none have ever felt any qualms about the complete abandonment of the obvious intent of the Framers on this issue.

That being said, here we are. The US Congress has not declared war since December 1941, and appears unlikely ever to do so again, even though the United States has been involved (often heavily involved) in a great many wars since the end of WWII. Sometimes, in a salve to the Constitution, they pass an AUMF as a way of saying, "See! We still have a say!" But often, even that doesn't happen.

My friend Vaughn Shannon pointed out recently that, while President Obama came under a lot of criticism for not striking Syria militarily back in 2013 when the question of chemical weapons first came up, this is not nearly the whole story. President Obama believed that, in order to strike a sovereign government in Syria, he would need (at minimum) authorization from Congress. That Congress, controlled by Republicans disinclined to given Obama anything that might benefit him politically and still stinging from the Iraq debacle, declined. Under the rules as he understood them, therefore, President Obama could not strike Syria. The fault was not his, it was Congress'.

All of this is to say nothing, of course, of international law. The UN Charter expressly forbids an attack on a sovereign member state except in self-defense or under the authorization of the Security Council. Most Americans have long since forgotten that the United States wrote those rules, though we have long ignored them. (Bonus points for anyone who can name the two incidents in history where the UNSC actually did authorize war.)

Usually, the way to settle questions of law is to go to court. But US courts have long declared that they have no intention of touching this question with a 10-foot pole, so there's no help there.

Congress, of course, only exercises the war power when they feel like it politically, and when the President feels like asking them to. This has devolved into a situation where the President is given broad leeway, and where people support or oppose acts of war based on which party they belong to. So much for politics ending at the water's edge...

How did we get here? Like a great many bad decisions, the roots lie in fear. After the Cold War, we very quickly became afraid of a resurgent Soviet Union and the global Communist menace. In that fear, we allowed successive Presidents to commit US forces to various and sundry military adventures, including the Vietnam debacle now memorialized by over 50,000 names carved in black stone in Washington.

The problem with using law as a guide to the US' use of force is that the law must be interpreted first. As another friend of mine, Steve Saideman, pointed out recently, everyone in Washington has their own lawyers. The White House has lawyers, the Pentagon has lawyers (both in the Office of the Secretary of Defense and in the Joint Staff, which serves the military side), the State Department has lawyers, Congress has lawyers. Lawyers generally come up with arguments explaining how whatever their masters want is on the right side of the law - witness the infamous "torture memos" drawn up in the George W. Bush administration by John Yoo and his colleagues.

So the original question - does the President have the authority to launch strikes on Syria - isn't actually a legal question at all. It's a political question. And how we answer it turns very much on how we understand both the rules supposedly enshrined in law, as well as the norms underlying those rules.

In general, laws only function when people accept their legitimacy - that is, when they buy into behavioral norms that underpin the laws. Take those norms away, and the law becomes merely a rhetorical device, a talking point for pundits to argue about. The very idea of being a "nation of laws" rests on our willingness to actually behave as if the laws matter more than what we happen to want to do at any one moment.

As Steve Saideman and others have pointed out, this is where the Trump Administration has done perhaps more damage than in any other area. Norms have been eroding for years, of course, and any reference to a "golden age" of norms in the past is probably mythical. But Trump, who more than any other President is the embodiment of his own administration, actively rejects all norms. He doesn't think they exist, or if they do they only exist for suckers and losers. He believes himself to be unconstrained by any rules - laws, norms, social understandings of shame, you name it.

And so in the coming days, the Trump Administration may attack Syria with missiles or bombs. Such an attack will likely accomplish nothing, as I have argued elsewhere. But as it will come with neither blessing from the UN nor authorization from Congress, it will be one more erosion of the norms that once governed US military force, however imperfectly. In so doing, we model the behavior that the rest of the world will emulate. We are creating the world we claim we don't want, and then blaming everyone else for it. Perhaps we, like our President, need to grow up and face the world like adults.

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