Friday, September 6, 2013

Syria intervention and the law, continued

Thanks for the many terrific comments (on- and offline) on my recent post regarding possible U.S. intervention in Syria.  I don't have time today to respond to all of them, but a couple points made by my colleague Garrett Epps are particularly compelling.

Garrett suggests that if I'm right that there is (morally speaking) a legitimate choice to be made between obeying international law and following the dictates of morality, then the U.S. ought to at least formally request Security Council authorization before taking unilateral action.  I agree with this suggestion.  Of course, the Council's response probably would be a foregone conclusion, given the virtual inevitability of a Russian (and possibly a Chinese) veto.  But formally requesting Council authorization would be an important exercise in self-discipline and in respect for the law.  It would force the administration to hone its arguments regarding why military intervention really is necessary and to present those arguments publicly.  It would at least imply an acknowledgment that any unilateral action by the U.S. would be against international legal norms.  And if (as seems inevitable) the Council denies the request, the resulting chastisement, while falling short of formal sanctions for breaking the law, would at least impose some cost (in the coin of international public opinion) on the U.S. for doing so.

As I wrote in my previous post, law should have some teeth to prevent legal subjects from, in all good conscience, over-disobeying the law thanks to overconfidence in their own moral judgments.  A formal request of, and rejection by, the Security Council may be the best international law can provide in this instance in the way of teeth.  Of course, I am under no illusions that this will actually happen; I can't envision any U.S. President (even a second-term former law professor) willing to pay the domestic political price that surely would follow from the perception of begging the U.N. for permission to act and coming away with nothing to show for it.

Garrett also points out another wrinkle:  the fact that part of international law is customary law, that is, law that is formed not by formal treaties, proclamations, or court decisions but rather by patterns of practice over time.  Subjects of international law can actually make the law to which they are subject by taking some action that, while not legal (at least not clearly legal) when taken, becomes accepted as legitimate by other participants in international law.  This complicates matters; it suggests that if the U.S. acts unilaterally, that action may eventually come to be regarded, ex post, as legal.  (Some argue that NATO's intervention in Kosovo in 1999, which occurred without Security Council approval, should now be regarded as legal for this reason.)  And while I'm no international law expert, it strikes me that the case for the customary legality of intervention might be weakened if the U.S. were to ask the Security Council's permission and that permission were to be denied.

I doubt very much, however, that the hope of making new customary international law by itself is enough to justify unilateral action.  For one thing, the precedent that would be set if unilateral "humanitarian" intervention become the norm would be dangerous and not necessarily to our liking.  The need for humanitarian intervention will often be a matter of reasonable dispute -- hence the presence of international procedures, however, imperfect, for determining its existence -- and if the U.S. can (legally) make these decisions unilaterally, then so can China, Russia, or for that matter North Korea or Syria or Iran.

In other words, it's one thing for the U.S. to act, and to be seen as acting, against established norms of international law; that is unlikely to set a legal precedent.  It's another thing entirely for the U.S. to help create a customary norm that unilateral intervention is legally justified (or for that matter to argue now, in defense of unilateral action, that such a customary norm already exists).

We can learn a lot about this distinction from Justice Robert Jackson's dissenting opinion in Korematsu v. United States, the now-infamous Supreme Court decision validating the internment of Japanese Americans during World War II.  Jackson acknowledged that the military cannot always be held to legal standards in time of war.  "It would be impracticable and dangerous idealism to expect or insist that each specific military command in an area of probable operations will conform to conventional tests of constitutionality,"he wrote.  "When an area is so beset that it must be put under military control at all, the paramount consideration is that its measures be successful, rather than legal."  Jackson thus acknowledged the possibility that the internment order was morally, if not legally, permissible.

But Jackson objected to the Court's legal validation of the order.  "A military order, however unconstitutional, is not apt to last longer than the military emergency," Jackson noted.  "But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle .... The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need."

A legal norm permitting military intervention for humanitarian purposes might turn out to be Jackson's "loaded weapon," waiting to be deployed by any nation with a quasi-plausible argument of "humanitarian" exigency.  A saliently illegal humanitarian intervention is dangerous, to be sure, but at least it doesn't establish a legal principle we all might come to regret later.

Finally, a word about my very tentative "leaning" in the previous post toward "militarily appropriate" strikes against Syria.  Part of me regrets writing that; there are many complex moral and policy considerations in the mix, most of them well beyond my capacity for well-informed judgment.  I am in fact profoundly conflicted about what should be done as a practical matter; I'm not sure how I would vote on the proposed resolution if I were a member of Congress, though for various reasons I still lean somewhat in favor.  A vote for intervention, however, has enormous potential to haunt those who cast it two or three years down the road, if "surgical strikes" against Syria become, as they very well might, "boots on the ground," "nation building," and all the horrible things we are justifiably sick of thanks to the last decade in Iraq and Afghanistan.  Only a fool would deny the huge actual and potential costs of intervention.  I didn't mean to deny them in my previous post.  What morality and policy have to say about intervention are extremely difficult questions.  My point was simply that these questions are different from, and not necessarily preempted by, the question whether intervention is illegal.

Thursday, September 5, 2013

Thanks to Larry Solum ...

... for the kind mention in his Legal Theory blog of my paper "What Lies Beneath:  Interpretive Methodology, Constitutional Authority, and the Case of Originalism," which I recently posted on SSRN and is forthcoming in the BYU Law Review.

Wednesday, September 4, 2013

Striking at Syria would be illegal. Should we do it anyway?

In yesterday's New York Times, Yale law professors Oona Hathaway and Scott Shapiro engage the question of whether the U.S. ought to unilaterally strike at Syria despite the absence of a U.N. Security Council authorization.  Hathaway and Shapiro suggest, though they don't quite declare, that the answer is no.  Striking without U.N. approval, they note, would violate the U.N. Charter to which the U.S. is a party and thus would be illegal.  Doing so would set a precedent that would make it easier for other nations, in the future, to take unilateral military action, perhaps with less justification than the U.S. (in light of Syria's use of chemical weapons on its own people) now can claim.  This in turn would threaten to return the world to the pre-U.N. status quo in which nations (at least powerful nations) routinely struck at other nations on trumped-up grounds.  "The question Congress and Mr. Obama must ask now," write Hathaway and Shapiro, "is whether employing force to punish Mr. Assad’s use of chemical weapons is worth endangering the fragile international order that is World War II’s most significant legacy."

I think this is the right way to put the question, although there is some nuance here that, to their credit, Hathaway and Shapiro seem to recognize.  The temptation for many Americans, including many lawyers, will be to question whether international law is really the sort of law that imposes an obligation of obedience on its subjects, particularly in the face of a pressing moral crisis like Assad's use of chemical weapons.  But international law is law; as a party to the U.N. Charter, the United States has an obligation to respect its authority just as Americans have an obligation to respect the authority of our Constitution and laws.  (Indeed one could argue that the U.N. Charter has more binding force than most domestic laws.  After all, the U.S. voluntarily became a party to the charter, but among U.S. citizens, only naturalized citizens and government officials have affirmatively sworn allegiance to the U.S. government and its laws.)

The fact that international law, including the U.N. Charter, is legally binding on the United States does not end the debate, however.  Even valid law cannot impose an absolute, indefeasible obligation to obey its commands; sometimes the demands of morality outstrip those of law.  This is why I like the way Hathaway and Shapiro have put the issue, as a choice between the arguments for obeying the law (preserving "fragile international order") and the arguments for disobeying it in the name of morality (punishing Assad's use of chemical weapons -- and, one might add, possibly deterring their future use).  It's important to recognize that the presence of valid law implies a choice, not a blind duty of obedience.  If the law generally is good law, of course, then in the vast majority of cases the choice is an easy one, so easy perhaps that it doesn't seem like a choice at all:  Of course we should obey the law.  But in some extraordinary cases the choice becomes very hard, because obeying the law is likely to bring dire moral consequences.  The Syria situation seems to me like such an extraordinary case.  There is much to be said for disobeying the law in this instance in the name of preventing a greater evil.

One consideration that Hathaway and Shapiro don't emphasize, however, is the importance of being willing to take one's medicine when one willfully disobeys the law in the name of a greater moral good.  The modern tendency is to equivocate around inconvenient legal obligations -- to mount sophistic arguments for why one isn't really disobeying the law at all.  But the choice between obeying the law and serving a higher moral cause must be a real choice, with real teeth attached to it.  If one decides to disobey the law in the name of morality, than one must be prepared to suffer the legal consequences of one's actions.  Without the very real threat of legal consequences for disobedience -- even for justified disobedience -- people would be far too ready to engage in unjustified disobedience, wrongly confident in the strength of their own unilateral moral judgment.  The threat of legal sanctions for disobedience is necessary to make would-be disobeyers think at least twice before deciding that morality justifies their actions.

It is highly unlikely, however, that the U.S. would suffer any formal legal sanctions for striking Syria without Security Council authorization.  This is true for the same reason that the Security Council is highly unlikely to provide authorization in the first place:  At least one Council member would veto any such resolution.  (The U.S. itself holds such a veto as a permanent Security Council member.)  The absence of any real threat of sanctions for disobeying the law serves, to my mind at least, as a reason against disobeying the law and striking Syria unilaterally; we (that is, we collectively -- the United States, as represented by our government) are that much more likely to be overconfident in our own judgment and insufficiently respectful of the value of international law without the prospect of significant punishment for disobeying that law.

At the same time, the blatant procedural flaws within the Security Council -- the presence of five powerful permanent members (China, France, Russia, the UK, and the US) with absolute power to veto Council resolutions -- strengthens our reasons to act unilaterally by undermining the procedural fairness of the law.  I have argued in my scholarly work that the authority of law rests in large part on the fairness of its procedures -- on the capacity of those procedures to avoid or resolve disputes in a way that can be perceived as relatively impartial and thus can be accepted by those subject to the law.  The stacked deck that is the Security Council flies in the face of this essential impartiality, weakening the U.N. Charter's claim to be validly binding law in the first place.

All of which makes this, for me, a very close case.  The U.N. Charter is law, binding upon the U.S. and other nations, and it is law that, as Hathaway and Shapiro note, serves a vital dispute-avoiding purpose.  But it is law that is rather saliently compromised by procedural dysfunction within the institutions charged with carrying it out.  And, in this instance, it is law whose claim to our obedience is strongly opposed by a forceful moral argument that action must be taken in Syria -- although we should be wary of being overconfident about our own moral judgments in this respect.

In the end, I lean toward doing the following:  Striking against Syria in a militarily appropriate fashion, unilaterally if need be, and doing so in full acknowledgment that the action is a violation of our legal obligations under the U.N. Charter.  But there is no good, clean choice here -- especially since people are likely to die either way.  Thank God I'm not the President.