Legalism Watch: Syria

Paolo Uccello, Battaglia di San Romano (ca. 1435-60)

When they tell you that the air campaign against Daesh forces in Syria (yes, I got tired of calling it the "Caliphate") is illegal, we need to keep in mind that that doesn't mean it's illegal like the 2003 invasion of Iraq, as a serious breach of the United Nations Charter; what they're talking about is in the first instance this:

President Hassan Rouhani of Iran, which is allied with the government of President Bashar al-Assad of Syria, said the airstrikes were illegal because they were not conducted with the approval of Syria’s government, a point later echoed by President Vladimir V. Putin of Russia, another ally of Syria’s.

The Syrian government itself seemed more accepting, probably because it was glad to see military power brought to bear against forces that have been fighting Mr. Assad and recently killed many of his soldiers. The Syrian Foreign Ministry said the government “backs any international effort that contributes to the fight against terrorists,” whether it is the Islamic State, the Nusra Front “or anyone else.”

Samantha Power, the American ambassador to the United Nations, informed her Syrian counterpart about the strikes ahead of time, but did not seek permission or disclose the timing or targets. (Peter Baker, New York Times)

It's illegal because even though everybody said I was invited to your party and the door was open when I came over and said "Hi" and you said "Hi" back, your friends feel I still should have knocked.

Or because Congress has authorized the US only to attack parties associated with the September 11th attacks and the Daesh organization got a divorce from the Qa'eda last February so they're not associated with it any more even though they're still living in the same building and seem to have joint custody of the kids. So if Obama had decided to go in in January it would have been OK, Bruce Ackerman, but now it's

a decisive break in the American constitutional tradition. Nothing attempted by his predecessor, George W. Bush, remotely compares in imperial hubris.

Really? The American constitutional tradition wasn't breached by the plainly illegal invasions of Grenada 1983, or Panama 1989, for which no Congressional authorization was or could be claimed at all? Or to be bipartisan about it, the air campaign in Kosovo 1999 which went on after the House failed to authorize it? For that matter, Libya in 2011? This is something drastically "new" and "decisively" worse, how exactly?

And didn't the Bush administration essentially extort the consent of Congress by means of lies and emotional blackmail? Can Congress really be said to have consented when it was disinformed? And dealing with the intricate question whether Daesh is or isn't "associated" with Qa'eda is more important than the obligation in international law to prevent genocide?

This is not to say the air campaign in Syria is a good thing, which is very far from clear. But a legalist campaign against the administration's actions in Iraq and Syria is in bad faith (not seeking justice but ways of saying that Obama is in some sense worse than Bush), ahistorical (ignoring the fact that every president has resisted or defied the War Powers Act in some way since Nixon tried to veto it in 1973), and, as I was saying the other day, a trivial distraction from the more important questions of whether it is morally acceptable and whether it will or won't accomplish anything.