The CrISIS in U.S. Foreign Policy and The Rule of Law

By: Alexander J. Brock

As President Obama prepares to address the United Nations (UN) General Assembly in New York today to help build an international coalition in the fight against the Islamic State in Iraq and Syria (ISIS), he may have some tough questions to answer. As some have been quick to point out, the strikes earlier today on ISIS’s de facto capital, the Syrian city of Raqqa, may very well be a violation of international law of armed conflict and of the UN charter. The lack of a clear legal justification for the administration’s actions in Syria is not an isolated incident. Rather, it is just the latest in a series of legally questionable responses that the administration has made in the Middle East over the last four years. The fact is that the popular uprisings that have swept across the Middle East beginning in late 2010 have revealed an anachronistic foreign policy strategy and legal mechanisms ill-equipped to address the new reality in a region that has undergone fundamental change. Washington’s inability to adapt its approach to the Arab world stems from the lack of an overarching strategic vision for the region and America’s role in it.

Responding to ISIS, the AUMFs, and Self-Defense

The White House has received extensive criticism for its position on the domestic legality of the air strikes against ISIS, which the administration has sought to justify under a 2001 Authorization to Use Military Force (AUMF) that was enacted to enable attacks on al Qaeda for its involvement in the September 11, 2001 terrorist attacks, and also under a 2002 AUMF that authorized the war in Iraq. With these as statutory authority, the administration claims, the President has satisfied the requirements of the War Powers Act and therefore does not need congressional authorization.

Administration officials, however, have stated a number of times in the past that the president had desired to repeal the 2001 AUMF, saying there was a need for discipline so as to avoid being “drawn into more wars we don’t need to fight,” or, “grant[ing] presidents unbound powers more suited for traditional armed conflicts between nation states.” For Obama now to seek the protection offered him by the AUMF is awkward at best, and illegal at worst: the AUMF, according to critics, was clearly not intended to cover groups like ISIS, which formally split with al Qaeda earlier this year. As for the 2002 law that authorized the Iraq war, this position, too, seems at odds with past statements from high-level administration officials: just a few months ago, National Security Advisor Susan Rice wrote in a letter to Speaker of the House John Boehner, “with American troops having completed their withdrawal from Iraq…the Iraq AUMF is no longer used for any U.S. government activities and the Administration fully supports its repeal.” To make matters more confusing, the White House maintains that it continues to support the law’s repeal, despite using it as authority for the offensive.

Another looming problem for President Obama is the possibility that his actions in Syria violate international law.

The strikes against ISIS in Iraq are relatively well-founded: they are being carried out with the consent (and indeed at the request) of the Iraqi central government in Baghdad, and thus constitute an act of collective self-defense, one of the permissible causes for military action under Article 51 of the UN Charter.

In Syria, however, President Bashar al-Assad has made no such request, nor has he given consent for the attacks and, as a result, the United States’ military operations seem to violate the sovereignty of the Syrian state.

In the absence of Assad’s permission or a UN Security Council resolution, the administration has chosen to depict the fight in Syria as an extension of the collective self-defense argument for Iraq, claiming that ISIS fighters have attacked Iraq from safe havens within Syrian territory. It also names the existence of U.S. personnel inside Iraq, and invokes the right to defend the security of those personnel.

The issue is not whether these legal arguments are sound, but rather to show that this step was even necessary. The current legal mechanisms at the administration’s disposal do not reflect the reality on the ground in the Middle East since the popular uprisings of 2010, where the landscape has changed considerably, but rather a different period long ago. To need to resort to the argument of collective self-defense, i.e. that attacks in Syria are actually on behalf of Iraq for its self-defense, in order to launch attacks on what is an obviously dangerous terrorist group, shows that something is lacking in the President’s legal toolkit.

“Making It Up as We Go”

But the most recent crisis in Iraq and Syria is just the latest symptom of a much broader phenomenon in American foreign policy in the Middle East of “making it up as we go.” It was only one year ago that the President sought congressional authorization to carry out strikes against the Assad regime in Syria for its use of chemical weapons, which Obama had deemed a “red line.” The arguments that the administration advanced in support of a military strike were hard to pin down as they changed from day to day. They ranged, on one hand, from the humanitarian and the moral, with Secretary Kerry’s statement that, “the indiscriminate slaughter of civilians…by chemical weapons is a moral obscenity” to, on the other hand, arguments of deterrence, claiming that other dictators would consider using chemical weapons if they saw they could do so with impunity, and then, finally, to the purely punitive, wanting to punish Assad for such a flagrant violation of international norms.

The questions surrounding the legality of a strike on Syria were as numerous as the administration’s justifications for it. In the absence of a resolution from the UN Security Council, which was almost certainly doomed to fail because of Assad-ally Russia’s veto power, the only other acceptable circumstance for military intervention is “national or collective self-defense,” as far as the United Nations is concerned, and the administration never made that argument. Even if it had put collective self-defense forward as the justification, the Syrian rebels would have had to request the intervention and the White House would have had to recognize rebel forces as the legitimate government in Syria—something the administration was certainly not prepared to do. The deterrence argument, too, would only be actionable with a UN Security Council resolution. And the “humanitarian intervention” argument obscured more than it clarified—why was it that a relatively small amount of chemical weapons, used in what appeared to be a limited location in an isolated incident in August 2013 that killed 1,400 people, justified a humanitarian intervention, but the almost 70,000 people who had been killed through conventional warfare as of August 1, 2013, did not?

The administration was ultimately spared further articulation of its legal justification for an attack on Syria for crossing the President’s “red line,” with the diplomatic solution spearheaded by Russia.

Aiding Egypt?

The recent political turmoil in Egypt, too, has revealed the Obama administration’s lack of a cohesive framework for handling regional dynamics. This was brought into sharp relief with the July 3, 2013 coup that ousted President Mohammed Morsi of the Muslim Brotherhood. Under Section 7008 of the FY12 Consolidated Appropriations Act (P.L. 112-74), the United States is prohibited from providing aid to, “…the government of any country whose duly elected head of government is deposed by military coup d’etat or decree…or a coup d’etat or decree in which the military plays a decisive role.” Neither Section 7008, nor any other provision of U.S. law offers a definition of a “coup” or a “coup d’etat.” Indeed, analysts and observers both in the United States and in Egypt had heated debates over whether what happened in Cairo on July 3 was a coup or not. In Egypt, labeling the event as a “coup” indicated one’s political affiliation with the Muslim Brotherhood or its supporters, and those who called it a “popular revolution,” represented some form of the status quo ante from the Mubarak era, and heated debate permeated the popular press across the country. In Washington, too, controversy surrounded the “coup-not-coup” issue, in no small part because of the Obama administration’s choice to call it neither.

Here, though, the Obama administration was confronted with what the law required on the one hand, and with the reality that the new military-led regime in Cairo was sure to be friendlier toward American interests than that of the Muslim Brotherhood on the other hand. To label the military takeover as a coup, and thus suspend aid, would surely be consistent with U.S. support for the emergence of democracy in the Middle East, and yet such a move risked alienating a much-needed potential ally in the region in the form of the new government led by Field Marshal Abdel Fattah al-Sisi. White House officials consistently refused to label what had happened in Egypt a “coup,” despite all the evidence to the contrary, and as a result the aid continued to flow to Cairo even as the new regime performed brutal crackdowns on protesters and other supporters of the Muslim Brotherhood, beating and imprisoning them in blatant violations of human rights. But Washington, perhaps out of desperation for a recognizable government in the Arab world, ignored its own laws and the principles of democracy.

Reflecting on Libya

 Finally, going back to 2011, there was the military intervention in Libya. The justification put forth by the Obama administration was in line with the U.N. Security Council Resolution 1973, which provides for intervention “to protect civilians and civilian populated areas under threat of attack.” However, this humanitarian argument soon morphed into a mission aimed at achieving regime change. But the stated purposes of the intervention, and the arguments justifying that intervention, did not stop there. As Micah Zenko outlined on his blog with the Council on Foreign Relations, there were a number of different objectives and incentives behind joining the NATO-led military intervention in Libya, despite the fact that it was a country of little strategic interest to the United States. There was the thought that it would communicate a message to other dictators in the region about using force to quell peaceful protests; that it would support the Libyan rebels, who had displayed impressive credentials to figures such as Senator John McCain during his visits there; that it would be friendly reciprocity to American allies in Europe who offered assistance with the war in Afghanistan; and finally, it was believed that the operation would be easy to complete in a short amount of time. What began as an operation that sought only to protect Libyan civilians from the brutality of its eccentric leader turned into what was essentially yet another episode of U.S.-sponsored regime change in an Arab country.

Conclusion

The Obama administration has adopted a “crisis management” approach to the Middle East since early 2011. No longer able to form a foreign policy based on reliance on friendly authoritarian rulers in the region to keep the peace and to help manage crises as they arise, Washington finds itself grasping at straws in trying to justify its decisions, leaning on decades-old statutes intended to govern entirely different circumstances, and ignoring both its own legislation and international law when they prove to be inconvenient to the circumstances. This has damaged American credibility in the world. The foreign policy establishment and senior White House officials need to acknowledge that the Middle East as they knew it for the last forty years is no more, and there is an urgent need to design and articulate a clear strategic vision for engaging with the new Middle East if the United States wishes to continue to lead. Without such a vision, the same panicked and mercurial policymaking that has characterized this administration’s decisions in the region will continue for years to come.

Alex Brock is a J.D. Candidate at Berkeley Law.  He is a student contributor for Travaux.

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