As Congress debates military intervention in Syria, legal questions swirl around the possible outcomes. Without the backing of the U.N. Security Council, it’s not clear whether international law allows such a move. And when it comes to domestic national security law, the extent of action is likely to be a main point of contention. We consider the possibility of military action from several legal perspectives.

Guests

  • Diane Orentlicher Professor of International Law, Washington College of Law, American University
  • Wells Bennett Fellow in National Security Law, Brookings Institution; Managing Editor, Lawfare blog
  • Michael Schmitt Stockton Chair of International Law, U.S. Naval War College

Transcript

  • 12:06:41

    MR. KOJO NNAMDIFrom WAMU 88.5 at American University in Washington, welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. The Obama administration is seeking to reset a red line it set over the use of chemical weapons in Syria and maintain U.S. credibility in a region beset by turmoil by using military force in Syria. The American public is not so sure, and neither are our allies.

  • 12:07:17

    MR. KOJO NNAMDIA Washington Post-ABC News poll finds nearly 60 percent of Americans oppose missile strikes against the Syrian government. The U.N. Security Council lack sufficient votes for action, and the British Parliament voted against getting involved. So the president has put the question of intervention to Congress, a move that will bring lots of domestic legal wrangling over the next few weeks and one that raises lots of questions about the international legal implications if the U.S. does decide to act.

  • 12:07:48

    MR. KOJO NNAMDIHere to help us sort through those questions is Diane Orentlicher. She's a professor of international law at American University. She has lectured and published widely on issues of transitional justice, international criminal law and other areas of public international law. Diane Orentlicher, good to see you again.

  • 12:08:07

    PROF. DIANE ORENTLICHERIt's great to be back, Kojo.

  • 12:08:08

    NNAMDIAlso in studio with us is Wells Bennett. He is a fellow in national security law at The Brookings Institution and managing editor of Lawfare. That's a national security law blog. He focuses on legal matters related to the war on terror and national security. Wells Bennett, thank you for joining us.

  • 12:08:26

    MR. WELLS BENNETTKojo, it's great to be here.

  • 12:08:28

    NNAMDIAnd joining us from studios at the U.S. Naval War College in Newport, R.I., is Michael Schmitt. He is chairman of the International Law Department at the United States Naval War College and honorary professor at Exeter University, honorary professor of international humanitarian law at Durham University and senior fellow at the NATO Cyber Defence Centre of Excellence. Michael Schmitt, thank you for joining us.

  • 12:08:54

    MR. MICHAEL SCHMITTIt's my pleasure.

  • 12:08:55

    NNAMDIIf you'd like to join the conversation, if you have questions or comments about the international law issues the U.S. is facing as it considers intervening in Syria, call us at 800-433-8850. You can send email to kojo@wamu.org or just send us a tweet, @kojoshow. Diane, I'll start with you on the big international picture. Absent the support of the U.N. Security Council, is there a legal way for the U.S. to take action in Syria, whether it's with or without congressional approval?

  • 12:09:28

    ORENTLICHERSo if you ask most international lawyers whether we can lawfully send military forces to Syria under the circumstances as they exist today, they will say the only clear-cut answer is not without a Security Council authorization or if we're acting in self-defense, and not just in our own defense, but in collective self-defense of other states that might have been attacked by Syria. And so that's sort of the hard-letter law.

  • 12:09:58

    ORENTLICHERAnd, in fact, it's not just that the law of the U.N. charter requires Security Council authorization, but that particular rule is fundamental to the law of the U.N. charter and, more broadly, international law, no use of military force except in self-defense, absent this kind of authorization. I think the real challenge here, Kojo, is there's another side to this law, which is that Syria has also violated already and massively and tragically other fundamental norms of international law, which international law itself says can't go unredressed and cannot be permitted to continue.

  • 12:10:38

    ORENTLICHERIt's -- it has received a lot of attention recently. It's violated a really profoundly important norm against the use of chemical weapons against civilians or at all. But what's, I think, received less attention is that, simultaneously, this particular attack against civilians is a very serious war crime and also probably, under these circumstances, a crime against humanity, both of which carry very serious criminal law implications under international law. So you have these two norms in tension.

  • 12:11:11

    ORENTLICHERAnd the real tension for international lawyers is this. While there are really important reasons to maintain the requirement that the Security Council authorize the use of force except in situations of self-defense, the tension and the dilemma in recent years has often been that the Security Council is perceived not to be doing its job and to be hamstrung by paralysis. And then the dilemma is can it really be true that states are powerless to do something in the face of this kind of atrocity?

  • 12:11:46

    NNAMDIMichael Schmitt, same question to you.

  • 12:11:49

    SCHMITTWell, I agree with everything that's been said. I think we need, though, to distinguish between punishing a state for committing war crimes -- in this case, we're talking about Syria's war crimes because there's a -- an ongoing internal conflict there -- and acting on humanitarian motivations. I think there is a doctrine that is emerging -- doctrine of humanitarian intervention -- that might arguably suggest that a state can intervene in another state's affairs in order to stop massive suffering.

  • 12:12:20

    SCHMITTSo it's -- you're not intervening to punish that state -- that's the job of the Security Council -- but, rather, you're intervening to stop the killing. And this is the basis upon which the British government would forward to parliament and sought approval to conduct operations in Syria, although this is a very tenuous basis. It's not well settled in international law, and there are a number of very stringent criteria before this doctrine would apply, if it exists at all.

  • 12:12:46

    NNAMDIWhat are the potential consequences the U.S. would face on the international stage if we do go ahead and engage in Syria, given that you seem to think that there is a legal basis for doing this, Diane?

  • 12:12:59

    ORENTLICHEROh, sure. Well, first of all, Michael Schmitt's comment was a very important point. The tension I was alluding to earlier has been present in a number of recent conflicts. The most significant precedent for the dilemma that the administration and the international community faces today is Kosovo when the Clinton administration, in the face of mass atrocities by Yugoslav forces in Kosovo, was unable to get a Security Council authorization for military intervention, but mobilized a coalition of other countries.

  • 12:13:32

    ORENTLICHERAnd at that time -- and this was an example of the kind of humanitarian intervention Michael Schmitt was referring to -- the State Department lawyers were unable to conclude that there was a legal foundation for this, but also did not want to tell the Clinton administration you can't do this. Legal scholars looking at this afterward concluded, by and large, that this was illegal, but legitimate. And that phrase, I think, has a lot of resonance today.

  • 12:13:59

    ORENTLICHERThere is a lot of searching for a doctrine that would legitimize a response in the absence of a Security Council resolution. The British government is more comfortable with saying it's already lawful to intervene on humanitarian grounds, where the United States is, I think, is moving toward some version of endorsing that responsibility to protect doctrine, but still uncomfortable doing that without an international umbrella.

  • 12:14:26

    ORENTLICHERAnd so where the administration seems to be now is it's using the sort of pause moment both to shore up international support so that if there is an intervention, there seem to be international legitimacy, some kind of international sanction, even if it's not the U.N. Security Council, simultaneously and obviously shoring up domestic accountability and support for a military intervention through the consultations with Congress that are now underway.

  • 12:14:56

    NNAMDIMichael Schmitt, care to expand on this notion of legality versus legitimacy?

  • 12:15:03

    SCHMITTWell, I'm a bit uncomfortable with the notion. I believe that to the extent that U.S. military forces are sent into combat, we ought to be able to articulate a legal basis for doing so. So, for example, the British government has done exactly that with regard to the parliamentary debate, and they did so as well to -- with a little less clarity during Kosovo, whereas the United States has not done so in either case.

  • 12:15:30

    SCHMITTAnd it seems to me that we ought to be able to articulate what our legal basis is. If we indeed are willing to intervene in another state for humanitarian purposes, we ought to say so. I don't wanna be overly naive. I understand that there are times when international law will fall short, when international law doesn't satisfy the circumstances, doesn't achieve moral ends. But on a -- as a general matter, we ought not to be sending forces into harm's way without telling them why it is, as a matter of law, they can engage in that particular operation.

  • 12:16:05

    NNAMDIIn case you're just joining us, Michael Schmitt is chairman of the International Law Department at the U.S. Naval War College. He joins us from studios in Newport, R.I. Diane Orentlicher is a professor of international law at American University. And Wells Bennett is a fellow in national security law at The Brookings Institution and managing editor of Lawfare, a national security law blog.

  • 12:16:27

    NNAMDIWells, we talked with journalist and foreign policy scholar Marvin Kalb a few weeks ago about the fact that American -- an American president has not sought a declaration of war from Congress since World War II, and that isn't what the president is seeking now. What's he seeking instead, and what's the difference?

  • 12:16:45

    BENNETTWell, the -- in practice, the declaration of war is actually a pretty infrequent thing. United States has only declared war through Congress, so declaring five times. The practice in the U.S. has been broadly, instead, to seek what's called a congressional authorization, and that's what the president is going to Congress for now. He's looking for essentially additional support for his plan to take action against the Assad regime and degrade its chemical weapons capability.

  • 12:17:18

    BENNETTBut insofar as he is simply seeking Congress' authorization, he's actually acting in accord with historical practice. It's not -- there's not some break there.

  • 12:17:27

    NNAMDI800-433-8850 is our number if you'd like to join the conversation. You can also send us email to kojo@wamu.org. What questions do you have about the international law issues the U.S. is facing as it considers intervening in Syria? You can send us a tweet, @kojoshow, or simply go to our website, kojoshow.org, and join the conversation there. Diane, you note that there is another alternative that the international community could explore that has not been getting much play, the International Criminal Court.

  • 12:18:00

    ORENTLICHERMm-hmm. So there's actually been talk for quite a while about having the Security Council refer the situation in Soviet -- I'm sorry, Syria, to the International Criminal Court. That hasn't happened. It's -- the Russians and Chinese have made clear they're not interested in this and would veto it. I think they're -- so that is the only way that Syria would be able to be brought before the International Criminal Court because it is not a party to the statute of the court.

  • 12:18:30

    ORENTLICHERI think there's been something of a revival of interest in this option because it's a way to, as President Obama has indicated, to reinforce a fundamental norm and ensure that it isn't, in a really profound way, compromised. That said, I think most of the effort right -- energy right now is on doing something that will have a more immediate effect in deterring the future use of chemical weapons by Syria as well as other countries, looking to justice down the road.

  • 12:19:02

    ORENTLICHERThe United States -- another reason, I think, the U.S. government in particular may be hesitant to push this option even if it could get it is that it's committed to giving Syrians themselves a voice in determining, in a democratic future, how to handle the legacy of abuses committed during this conflict and previously, and a Security Council referral to the ICC would tie its hands to some -- to a significant extent.

  • 12:19:29

    ORENTLICHERAnother option that has been discussed somewhat -- and, again, I think this is just gonna get more attention down the road -- is establishing a regional court under the auspices of the Arab League, which has called for justice in the wake of the chemical weapons attack of Aug. 21. That raises a number of, you know, complicated challenges as well, but I think the idea is that justice should be brought closer to home than would be possible if the International Criminal Court had a case like this.

  • 12:19:58

    ORENTLICHERI think the big picture, though, Kojo, is there's a lot of technical legal issues and political ones that have to be worked out. But there's no question that what we've been -- what we have seen happening is a very, very serious violation of international criminal law for which accountability is expected and required. The U.S. government has for a couple of years been supporting efforts to collect evidence of war crimes in Syria with a view to supporting the justice effort once that is possible.

  • 12:20:35

    NNAMDIPlease feel free to jump in at any time, Wells Bennett and Michael Smith, because there are two other aspects of this issue I'd like to address. One comes by way of email from Don in Washington, D.C., who writes, I've heard on more than one occasion usually from a foreign press report that bombing Syria would violate international law and could subject the U.S. and the president to war crimes charges. How realistic are those claims as far as you know, Wells Bennett?

  • 12:21:00

    BENNETTWell, I think there is undoubtedly a view that he would violate a prohibition on the use of force in the charter. And as, you know, you've already heard well explained by Diane and Michael, the -- what's, I think, probably fairly characterized is a conventional international legal view is that absent authorization from the Security Council or an action in self-defense or an Article 51 of the charter that that is a technical violation of the law.

  • 12:21:31

    BENNETTBut then you get into this kind of -- into the kind of gray zone that Diane was talking about that's engaged the attention of all the human rights advocates and people who want to see atrocities prevented not withstanding those rules, you know, illegal but legitimate, things like that.

  • 12:21:46

    BENNETTSo, you know, in a strict sense, could there be an international legal violation in simply assisting in the degradation of chemical weapons capability, for example, there would be a charter violation for sure. But as to whether that would open up the United States to something more than the political sanction for violating the charter, I don't see that as a strong possibility.

  • 12:22:09

    NNAMDIMichael Schmitt.

  • 12:22:10

    SCHMITTYeah. I'd have to agree that it's difficult to imagine how that that could come about. I certainly agree with Wells that absent a justification and the only justification I see is this emerging doctrine of humanitarian intervention, then we will have violated the charter, Article 2, Subparagraph 4, the prohibition on the use of force. With regard to the individual decisionmakers, I mean that's occurred before with regard to Iraq. You remember charges were brought against Rumsfeld in a number of courts in other countries and so forth. But those all feel apart. So I don't see much of a practical danger in that occurring.

  • 12:22:48

    NNAMDIOnto to the telephones. Here now is David in Silver Spring, Md. David, you're on the air. Go ahead, please.

  • 12:22:55

    DAVIDHey. Thanks a lot. I'm just curious. I know countries have used white phosphorus and depleted uranium in wars before. I think white phosphorus might be considered legal to use in the war because of -- but I have seen pictures of, you know, what happens to people with exposure to depleted uranium specifically. I was wondering if your panel had any thoughts about why nobody in the past has been really brought to justice for depleted uranium and why all of a sudden we're so excited about these chemical weapons and Syria.

  • 12:23:29

    NNAMDIDiane.

  • 12:23:30

    ORENTLICHERWell, I might defer to Michael on...

  • 12:23:32

    NNAMDISure.

  • 12:23:33

    ORENTLICHER...specifically on white phosphorus, but the caller, David, is right that there have been some past uses of chemical weapons that did not evoke the kind of international...

  • 12:23:42

    NNAMDIAllow me to interrupt for a second...

  • 12:23:44

    ORENTLICHERSure.

  • 12:23:44

    NNAMDI...because just today in the check -- fact checking blog in The Washington Post, Glenn Kessler is reporting that during the 1980s both the Reagan administration and the Bush administration knew that materials that they were providing to Saddam Hussein in his war against Iran were being used to manufacture chemical weapons that those chemical weapons were in fact used against Iran during that decade. And you heard nothing from the United States because we happened to be supporting Iraq in that war. What do you say to people who say when our friends use it, it's OK, but if our enemies use it, somehow or the other, we get very upset?

  • 12:24:21

    ORENTLICHERSo, you know, I'm glad that that episode is getting a lot of attention, and I think looking back to today is a source of shame for us as a country that Saddam Hussein used chemical weapons. And under the circumstances you described and again I'm going to defer to Michael who may be more of an expert on the precise circumstances. But we -- clearly there was not the kind of international response that we're seeing today. I guess my response to that, Kojo, is am I'm far more proud of a president who declares this unacceptable and an intolerable breach of fundamental norms than a country that says never mind.

  • 12:25:08

    NNAMDIMichael Schmitt.

  • 12:25:11

    SCHMITTI agree with Diane. I don't think it's acceptable that a country picks and chooses when it's going to condemn such clear and classic violations of humanitarian law and of treaty law. With regard to the white phosphorus and depleted uranium, neither of those weapon systems are unlawful. White phosphorus is a system that's used to mark targets. It's commonly used. And depleted uranium is a system that's used to penetrate armor, specifically enemy tanks.

  • 12:25:40

    SCHMITTThe question with regard to white phosphorus and depleted uranium isn't the use per se of these weapons, it's how they're used in particular circumstances. So you may have circumstances has with any weapon, has with a rifle that the offender uses it unlawfully, but neither of these systems is unlawful per se.

  • 12:25:59

    NNAMDIThank you very much for your call, David. We go on to Euan (sp?) in Washington, D.C. Euan, you're on the air. Go ahead, please.

  • 12:26:07

    EUANThis is Euan Allison. Professor, I'm a student at (unintelligible)

  • 12:26:13

    NNAMDIYou're breaking up a little bit, Euan. I hope you're in a stable situation because we can't hear you very clearly, but please continue.

  • 12:26:21

    EUANHi. Sorry about that. I wanted to point out that the doctrine of humanitarian intervention was actually established by World War II, and in fact, it's one of the decisions that Nuremberg that went through all the previous instances when humanitarian intervention was used. So this is the justice case. I can go to your producer an exact page site so you can link to it.

  • 12:26:46

    NNAMDIOK.

  • 12:26:47

    EUANIt's been around for, well, it's approaching 150 years now.

  • 12:26:51

    NNAMDIOK.

  • 12:26:51

    BENNETTYeah. I...

  • 12:26:52

    NNAMDIGo ahead, please, Wells.

  • 12:26:53

    BENNETTI would defer to my colleagues here, and I know the justice case and I understand the argument. And that is undoubtedly a -- maybe a -- that's likely a historical basis that one would look to, to say there is a norm for doing this sort of thing. But then you get to clear treaty language, which is, you know, what creates the tension for the lawyers and the policymakers and 2 -- Article 24 is pretty straightforward and Article 51 is pretty straightforward, and you combine that with a deadlocked Security Council, it's driven by bad politics, and you lead us to the kind of conversation we're having here today. So, yeah.

  • 12:27:33

    BENNETTIt's not that there are no antecedence whatsoever for the notion that sometimes states have to do something to prevent atrocities. There's certainly such antecedence. But the difficulty for the legal analysis is that you have these other competing things, which leaves no one particularly happy.

  • 12:27:51

    NNAMDIEuan, thank you for your call. There is a treaty. Syria is a party to prohibiting use of poisonous gas as a fundamental norm. But Diane Orentlicher, before you go, there are lots of questions about the humanitarian side of our potential further involvement in Syria. This is, after all, a country that has been two years into a brutal civil war in which more than 100,000 people have already been killed.

  • 12:28:14

    ORENTLICHERSure. Well, I think there are a number of questions. A lot of publics, not just in this country but elsewhere, are asking what's so different about this latest massacre. So many people have already been killed in a humanitarian tragedy, why didn't we intervene then when fundamental norms were being violated wholesale for two years? And that's a fair question for a public to demand an answer to before its government commits to an overseas conflict. And, you know, I -- to that -- I guess there are several points that are worth making.

  • 12:28:52

    ORENTLICHEROne is, you know, I don't think we've been successful in addressing the Syrian tragedy for the past two years. And the fact that that's the case shouldn't prevent us from responding to this episode of horrific use of chemical weapons. As I indicated earlier, I think there's a particular justification now that does make this a new situation, and that is, you know, as we've been hearing over and over again, there is something uniquely horrific about chemical weapons.

  • 12:29:22

    ORENTLICHERThey are, by their nature, indiscriminant in who their victims are. They cause unbelievable harm. They're often used precisely because they cause agony, sometimes for days, before victims die. And so that does warrant, I think, a pretty (word?). In terms of the practical questions, which are the, you know, really important questions for the public to be asking, and many Congress -- members of Congress are asking quite appropriately, how do you know you won't do more harm than good by intervening?

  • 12:29:54

    ORENTLICHERAnd these doctrines that we've been sort of talking about, in shorthand, humanitarian intervention or the modern incarnation responsibility to protect, all carry with them a commitment that you have to have, a game plan that uses the minimum force that basically does the minimum harm you can possibly do, and certainly that doesn't entail violations of human rights in the response. But also, you have to think ahead. You have a requirement to think ahead and make sure that your intervention saves lives rather than provoking a worse blowback against civilians.

  • 12:30:30

    NNAMDIDiane Orentlicher, she's a professor of International Law at American University, who has lectured and published widely on issues of transitional justice, international criminal law and other areas of public international law. Diane, thank you so much for joining us.

  • 12:30:42

    ORENTLICHERIt's a pleasure. Thank you.

  • 12:30:44

    NNAMDIWe're asking you to stay with us 'cause we're taking a short break. So you can still call us at 800-433-8850. When we come back, we'll be focusing more on national security issues. Do you think national security issues will or should be a big factor in Congress' decision? 800-433-8850. Send us email to kojo@wamu.org. I am Kojo Nnamdi.

  • 12:32:51

    NNAMDIWelcome back to our conversation on U.S. military action and the law. We're talking with Michael Schmitt. He is chairman of the international law department at the United States Naval War College. He is honorary professor at Exeter University in the U.K. and the international -- and at the Durham University where he's honorary professor of International Humanitarian Law. He's a senior fellow at the NATO Cyber Defense Center of Excellence.

  • 12:33:13

    NNAMDIWells Bennett is a fellow in National Security Law at the Brookings Institution and managing editor of Lawfare, a national security law blog. He focuses on legal matters related to the war on terror and national security. We're inviting your calls at 800-433-8850. In terms of humanitarian rights and laws, where do you think the U.S. should come down on this issue? You can also send email to kojo@wamu.org.

  • 12:33:39

    NNAMDIWells Bennett, thinking about the legal wrangling that we'll be watching in Congress during the course of the next few weeks, from a national security point of view, what do you think the main tension point or tension points of war are likely to be?

  • 12:33:53

    BENNETTWell, a big one is going to be what kind of authorization, I mean, the signal issue is what kind of authorization, if any, is the president going to get? And they -- when the president first announced his decision to seek congressional authorization -- for initially, he had -- it was intimated that he might proceed on the basis of his own legal powers. When he announced he would go to Congress to seek an authorization, you know, his administration sent forth a proposed bill to use force in Syria. It was very, very broad, a very sort of open texture -- it didn't have much limiting language.

  • 12:34:29

    BENNETTAnd in the past day or so, we've seen a couple congressional proposals that have come out from their own deliberations. Now, there was a hearing in the Foreign Relations Committee yesterday, and that committee has one proposal that would impose a time limit on Congress' authorization and that would also have certain notification requirements, you know, to ask the president, to say more about what the strategic goals are there. There's a -- similarly, there's a competing proposal from representatives Van Hollen and Colony -- Connolly, excuse me, that is pretty much along similar lines.

  • 12:35:04

    BENNETTI mean, they vary in some particulars that are actually quite important. But the general question for Congress people in the White House, who's going to consider the processes is, what exactly is Congress gonna authorize? Is it gonna have -- is this gonna be the kind of thing where they say, you can do it. Use force of a certain scope. Will you'll be able to use for it, you know, three or four weeks or 90 days, 60 days, whatever it is.

  • 12:35:25

    BENNETTSo the question is is whether the White House and working with Congress, can it once make its case for Syria, while appeasing a constituency -- that is pretty well war-weary, I mean, to use a phrase that the president use -- while also appeasing to people who are pretty full-throated in their appetite to do something about Syria and to stop the atrocity there? So it's something of a balancing act.

  • 12:35:49

    NNAMDIWell, you mentioned the strategic goal the Congress will be interested in. There has to be the question of intent. If the U.S. does decide to use force, just what will we do with it? So how did this question of intent play into the position the administration has staked out and one that we'll probably see, perhaps, reshaped by Congress?

  • 12:36:09

    BENNETTWell, from the beginning, the president has said -- and I'm paraphrasing his words, So I might get them wrong -- but, you know, again, he said he was war-weary. He also said, "This is not Iraq. This is not Afghanistan." And I don't wanna put words in his administration's mouth, but the general tenor was is this is not a regime change exercise. And you can see how it reflected thus far in both the proposals that the Congress has come up with, that they're contemplating because both of them say, essentially, that ground troops can't be introduced, unless, they are introduced for a very narrow purpose.

  • 12:36:44

    BENNETTSo one proposal says to rescue you as servicemen, another one says that combat troops cannot be introduced for combat operations. So it leaves sort of a little bit of wiggle room. But the intent from the very beginning that the White House signaled was that they were doing something that was limited, that was narrow, and that they were going to take that to Congress. That didn't necessary jive with the breadth of its initial proposal to get authorization.

  • 12:37:10

    BENNETTIt was pretty broad, notwithstanding the goals of the intervention which they described as narrow. But I think what you'll see is gradually -- assuming that there is language out there that people in Congress can agree on, that you'll get some, you know, you'll sort of match up those goals with the law, ideally.

  • 12:37:28

    NNAMDIMichael, you have expertise in the specific field of air and missile warfare. Since the administration seems to be pushing an air strike in Syria as a way to accomplish it's goals, are there any considerations specific to that course of action that should be on the minds of Congressmembers as they weigh that possibility?

  • 12:37:47

    SCHMITTWell, I've been involved in a no-fly zone and, of course, I've been looking at air to ground operations for many years. The big problem is is it's really tough to do something strategic from the air in a relatively short time. If you look back at Operation Allied Force, which was the campaign over Kosovo, we're talking about 78 days of multinational bombing campaign, a very intense bombing campaign, in order to stop Milosevic from turning his military on the civilian population, the Kosovo Albanians.

  • 12:38:21

    SCHMITTSo if you're trying to do something from the area, you have to be rather realistic in what it is you can accomplish from the air. If you're trying to degrade the capability of Assad to employ chemical weapons, that's one thing, if you're trying to keep Assad and his forces in the barracks so they don't turn their weapons on the civilian population, that's much more difficult to do. So I would suggest that we need to be very modest in our expectations of what we can accomplish without boots on the ground.

  • 12:38:49

    NNAMDIHere's Jim in Dahlgren, Va. Jim, you're on the air. Go ahead please.

  • 12:38:54

    JIMWell, you know what, I agree with everybody -- in what they're saying. But the reality of it is -- sailors that are out on the ships right now. They're worried about other things, OK? They're worried about protecting themselves and forced protection. And they're worried about things like the SS-N-26 which we don't talk about in the media because that's kind of like something that nobody wants to really say we have -- they have it or they have it or Hamas has it or all that kind of stuff.

  • 12:39:28

    JIMAnd I'm really concerned about that, because if you're sitting up there on an Aegis destroyer or you're sitting up there on an Aegis cruiser, it doesn't matter because, you know, Nimitz is going up north now, out in the Red Sea. So if stuff goes down, I would expect Nimitz to come through the Suez Canal. The reality of it is...

  • 12:39:47

    NNAMDIWell, allow me to interrupt for a second because I don't understand what you're talking about. Do you, Michael Schmitt?

  • 12:39:53

    SCHMITTWell, I think the question is is whether or not we're posing a risk to U.S. forces in engaging these operations, and I think the answer is yes. You know, on a day to day basis, even when you're not in combat, it's very dangerous to fly high performance aircraft or to be in a warship at sea. And certainly, the Syrians have some capabilities to defend themselves and that will place U.S. military forces in harm's way.

  • 12:40:18

    NNAMDIAnd I know there's a navy base at Dahlgren. Jim, go ahead, please.

  • 12:40:23

    JIMJust -- I need somebody to Google Astro (sp?) 1026. Other than that, thank you, sir.

  • 12:40:29

    NNAMDIThank you very much for your call. We move on now to Nick in Winchester, Va. Nick, you're on the air. Go ahead, please.

  • 12:40:37

    NICKThank you, Kojo. I'm very glad that we pushed the discussion back away from the immediate political considerations about another Afghanistan or Iraq. Talking about Kosovo -- sorry, not Kosovo but at Yugoslavia, I think about Bosnia and how long the U.S. and NATO (word?) before taking any action there. And one of the primary concerns was whether the U.S. would provide any ground troops there because the Europeans weren't satisfied with us providing just logistics and air support, et cetera.

  • 12:41:21

    NICKAnd the second thing is Kosovo -- I'm sorry, not Kosovo, Rwanda. It was embarrassing to me to have Bill Clinton go there, I think, and the Bush administration and apologize for not having taken action because he was inadequately briefed. And, third, I think, let's not forget that Turkey, by the way, is a NATO country. And, fourth, India, in the early'70s, intervened in the Pakistani civil war that led eventually to Bangladesh...

  • 12:42:03

    NNAMDIWhat you seem to be...

  • 12:42:04

    NICKNo, no, no. My point there is that there is a national interest for a country to defend itself from being overflooded by refugees. And that's all I wanted to say. Just throw in some factors.

  • 12:42:20

    NNAMDIThank you very much for your call. For those of you who may not be familiar with the genocide in Rwanda in 1994 in which some 800,000 people died and President Clinton going to Rwanda later on to apologize for the U.S. not taking action. There are those who have said that what is taking place in Syria right now is much more comparable to what happened in Uganda than it is comparable to what happened in Iraq when we had faulty intelligence going into that situation.

  • 12:42:49

    NNAMDIBut we have not yet reached that stage of the conflict in Rwanda, Nick, so thank you very much for your call. But it's something that I'm sure will come up during the course of the discussion. Wells, one of the arguments being made is that the very existence of chemical weapons and their possible or likely use is a threat to our national security. How strong a factor do you think that argument will be as we watch this debate unfold?

  • 12:43:16

    BENNETTWell, it's undoubtedly gonna be a factor. The president has come out and started talking about the acquisition and use of chemical weapons by Assad is a threat to our national security interest. And Congress passed the law in 2003 that said, you know, the acquisition of WMD, I think, meant to include those sorts of things was a threat to our national security interest. And you can see that in actually in some of the legislations being contemplated right now in Congress.

  • 12:43:49

    BENNETTThe broader of the pair is in the Senate, and it says that Congress has found this to be a threat to our national interest before it's a grave -- a very grave thing and most importantly that the president, notwithstanding this authorization, has the constitutional power to use force to defend our national security interest.

  • 12:44:10

    BENNETTSo there's almost, at least in that draft, a recognition that something -- this is something that maybe even, I mean, you could kind of make the argument and spin it out of it that the president could actually be doing by himself. So when you take all that and sort of switch it around a bit, it's very much a factor.

  • 12:44:26

    NNAMDIGetting back to the caller we just had, when it comes to presidents, our collective memories tend to be fairly short. We look at Iraq. We look at Afghanistan. They tend to be freshest in our minds but as our caller said, might we learn more relevant lessons from Rwanda, Kosovo, even Libya?

  • 12:44:43

    BENNETTWell, yeah, certainly. I think as far as -- but I would venture to guess that in this administration, the lessons are probably cut quite differently depending upon the historical example. There are some people in the president's national security team who are ex-Clinton people and who reportedly look back at the Rwanda episode with paying the...

  • 12:45:07

    NNAMDISusan Rice, Samantha Power.

  • 12:45:09

    BENNETTExactly. And, you know, Samantha Power is now ambassador of U.N. Susan Rice is now the national security adviser, but these are people who are very much are in favor of acting to stop these things. And so I think for them, certainly, that's the moral lesson of Rwanda, but then that gets you into the kind of legal arguments about the U.N. Charter and humanitarian intervention.

  • 12:45:28

    BENNETTAs for Kosovo, yeah, we did act and the claim was, as far as the international law went to, is not strictly legal but legitimate. The president though had said, as far as U.S. law, is sort of murky in that, initially, the government did not publicly describe the president's authority for using force without congressional authorization and, you know, in the absence of certain factors that tend to support unilateral exercises of force by the president.

  • 12:46:02

    BENNETTEventually, Congress did appropriate some money for military action there, and there were some kind of legal wrangling by the lawyers to make that make sense. But as a matter of -- in terms of the U.S. law that governs the whole thing, it's sort of regarded as kind of an eyebrow-raising episode not necessarily -- not strictly speaking bad but it's sort of one where it's sort of a bit of a murky thing. So, yeah, those are incredibly important historical examples, but I think the lessons that we derive from it are quite different.

  • 12:46:32

    NNAMDIMichael Schmitt, it gets back to the conversation we were having earlier about what's legal versus what's legitimate because if one looks at, say, Kosovo or Rwanda, there are those who will say regardless of whether or not intervening there would have been legal, it would certainly have been legitimate. It might have saved hundreds of thousands of lives.

  • 12:46:52

    SCHMITTWell, I'm one of those people that would certainly take that position. I -- you know, I think what the distinction between Rwanda and Kosovo was, it had to do with the national interest of the United States. It was difficult for us to articulate a reason that it was in our national interest to intervene in Rwanda.

  • 12:47:13

    SCHMITTHowever, in the case of Kosovo, that was easier to do because we were being pushed by our European allies who had experienced trauma throughout the Balkans who were suffering the refugee movements into their country and so forth. And I think we're seeing that -- I believe we're seeing that played out here in Syria as well. I mean, we have to remember that the suffering in Syria has been going on for now two years and the red line, if you will, was chemical weapons.

  • 12:47:39

    SCHMITTThe suffering in Syria poses less of a threat to us than the prospect that chemical weapons would be used and then passed into the hands of transnational terrorists, which would really represent a threat to the United States. So the common thread running through all three of these cases is that countries tend to act when they deem it in their national interest to do and they tend not to act when they don't see a national interest in spite of the humanitarian imperative.

  • 12:48:06

    NNAMDIWe got to take a short break. When we come back, we'll continue our conversation on U.S. military action and the law. If you have called, stay on the line. We'll try to get to your calls. You can also shoot us an email to kojo@wamu.org. Do you think national security issues will or should be a big factor in Congress' decision? 800-433-8850. I'm Kojo Nnamdi.

  • 12:50:11

    NNAMDIWelcome back. We're talking about the debate currently taking place around the issue of the U.S. and Syria in the context of the law with Wells Bennett, a fellow in national security law at the Brookings Institution and managing editor of Lawfare. That's a national security law blog. He focuses on legal matters related to the war on terror and national security. And Michael Schmitt is chairman of the International Law Department at the United States Naval War College.

  • 12:50:38

    NNAMDIWe got an email from Jonas, who says, "My question is if Assad was not losing the war with the opposition groups, why would he start using chemical weapons at this point, knowing that would give a green light to the U.S. and its allies to intervene? How thoroughly has the issue of who fired the chemical weapon been assessed? Could it, in fact, be the work of opposition groups hoping to get help from the West?"

  • 12:51:04

    NNAMDIThis raises the thorny question, both Wells and Michael, about evidence. Is there an essential difference between the intelligence we're getting out of Syria and the intelligence we were allegedly getting about Saddam Hussein? I'll start with you, Michael Schmitt.

  • 12:51:23

    SCHMITTWell, it -- I don't know the answer to that question. We haven't had an opportunity to look at the intelligence out of Syria in retrospect. Obviously, the intelligence community's assessment with regard to Iraq was wrong. You know, what we have to remember is that it's not a perfect world. States don't always have perfect information to work with. What international law requires is that states act reasonably. In other words, they act as other states would in the same circumstance when deciding to resort to force.

  • 12:51:56

    SCHMITTThe standard that tends to be articulated is that the evidence must be clear and it must be compelling. That does not mean that it must be absolutely correct. But, you know, of course, I can't speculate as to whether or not the intelligence is correct or not. I will tell you that, apparently, the British government is of the opinion that it is and ours is. But, you know, as we learned in Iraq, that's not always the case.

  • 12:52:19

    BENNETTAnd...

  • 12:52:19

    NNAMDIWells?

  • 12:52:20

    BENNETT...to that, I mean, I agree with everything Michael said. There's a baseline standard that states are gonna obsess through their political processes and see is that standard met. And you can look back at the Iraq episode and see the dynamic between Britain and United States and naturally feel skeptical and wanna ask questions. You know, I can't speculate about what's in it. But as for the why question, you know, again, this is sort of talking out of school and that it's well beyond the state of the law.

  • 12:52:54

    BENNETTBut as for the motivations for why Assad, you know, why the Assad regime -- I think it's probably a better way to put it -- would do what it's accused of doing now versus earlier and never, it's impossible to know. There were all these suppositions about what motivated Hussein that, you know, I mean, that proved to be quite wrong after we invaded. So it's impossible to know.

  • 12:53:15

    NNAMDIHere is Greg in Washington, D.C., with a related question. Greg, your turn.

  • 12:53:20

    GREGHi. I just think it's important to the discussion -- the legal discussion to understand what specifically the gas use, what it does to its victims. So I was hoping somebody could speak to the specific physiological effects of the gas and why that is particularly atrocious.

  • 12:53:36

    BENNETTThat is beyond my expertise. I'm gonna snap that one to Michael.

  • 12:53:41

    NNAMDIMichael?

  • 12:53:42

    SCHMITTWell, I'm not -- certainly not an expert in chemical warfare. I understand it's sarin gas, which is a nerve agent. But, you know, I'm not an expert in that area.

  • 12:53:51

    NNAMDIAnd for that matter, Doctors Without Borders has issued a statement indicating that while its members have been treating people who have inhaled the substance, they are not at this point either in a position to say, A, exactly what it is or, B, exactly who it came from. So presumably, as Congress is being briefed and the Obama administration is providing intelligence on it, we will get to know more and more about that question, Greg, but it's not a question that we can answer right now.

  • 12:54:23

    NNAMDIThank you very much for your call. Michael, right now, the debate is primarily focused on a way in. But there are a lot of folks, including some in the Department of Defense, who are more concerned about the way out. In a decision like this, how much are the possible unintended consequences or potential for a snowball effect of involvement factor into a decision?

  • 12:54:45

    SCHMITTIt should -- this is, of course, a political not a legal question, but I think it's a very good one. We're talking about, perhaps, the most volatile place in the world right now, you know, bordering in Israel and so forth, the Arab Spring effect and so forth. So I think we need to be very, very careful that we don't have unintended effects that slipped beyond Syria. I mean, we're dealing with an individual in Assad who's going to become increasingly irrational as he starts taking military hits.

  • 12:55:18

    SCHMITTAnd, you know, once folks become unrational, it creates a very dangerous international situation. So I'm quite concerned about exactly that prospect of the unknown occurring.

  • 12:55:32

    NNAMDIWells?

  • 12:55:32

    BENNETTOh, yeah. Michael knows this far better than I, but there's really only so much a legislator or a president or, for that matter, an international community can really understand about how a situation will develop before it actually does. And if the history tells us anything in this regard, it's that you really never know which way it's gonna go. You can -- I mean, as far as the narrow legislative questions we're talking about, you know, you can impose restrictions.

  • 12:56:03

    BENNETTYou can say, don't use force for this purpose, but do use it for that purpose or for a certain amount of time. But if you go into a country even pursuant in their authorizations and then circumstances change or the region becomes very destabilized, there's no telling what could happen. So it's a critically important thing but a great unknown.

  • 12:56:24

    NNAMDIOf course, the next big what if question hanging over the next few weeks is going to be what if the Congress votes no? What then?

  • 12:56:34

    BENNETTWell, there is -- anytime the president wants to act, assuming he still wants to act, he has to do so pursuant to the Constitution or to a statute that gives him power. He has suggested that he has an independent constitutional basis for action. That notwithstanding, he has gone to Congress to seek authorization, reckoning correctly, in my view, that he's on much firmer legal and political and moral ground if he distributes the accountability for these sort of questions among Congress people and then comes up with a unified approach.

  • 12:57:10

    BENNETTThat having been said, if the Congress then says no, you know, the president does have independent military powers, and these are the ones he referred to earlier, and he might try to invoke them now. That having been said, once Congress -- if, for example, if we were to suppose that Congress not only does not approve but, in fact, disapproves the use of force. I mean, there is this venerated case that everyone reads in law school that talks about the powers of the president when Congress has disapproved the implied will, or explicit will of Congress is contrary to the president's action.

  • 12:57:45

    BENNETTAnd that is when the president's authority is supposed to very low. It's lowest ebb, legally. But then you get into the politics of it. If he goes to Congress and gets rejected, and then you have to basically in a place where David Cameron was, which can be a tough place for presidents to be.

  • 12:58:00

    NNAMDIWe'll see how it all unfolds. Wells Bennett is a fellow in national security law at Brookings Institution and managing editor of Lawfare, a national security law blog. Michael Schmitt is chairman of the International Law Department at the United States Naval War College and senior fellow at the NATO Cyber Defense Center of Excellence. Michael Schmitt, Wells Bennett, thank you both for joining us.

  • 12:58:21

    BENNETTKojo, thanks so much for having me.

  • 12:58:22

    SCHMITTOh, it's my pleasure.

  • 12:58:23

    NNAMDIAnd thank you all for listening. I'm Kojo Nnamdi.

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Friday, Nov 21 2014Sorting political fact from fiction, and having fun while we're at it. Join us for our weekly review of the politics, policies and personalities of the District of Columbia, Maryland and Virginia.