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US Bombing Syrian Troops Would Be Illegal

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Reprinted from Consortium News

U.S. Secretary of State John Kerry on Aug. 30, 2013, claimed to have proof that the Syrian government was responsible for a chemical weapons attack on Aug. 21, but that evidence failed to materialize or was later discredited.
U.S. Secretary of State John Kerry on Aug. 30, 2013, claimed to have proof that the Syrian government was responsible for a chemical weapons attack on Aug. 21, but that evidence failed to materialize or was later discredited.
(Image by [State Department photo])
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In an internal "dissent channel cable," 51 State Department officers called for "targeted military strikes" against the government of Bashar al-Assad in Syria, a proposal that President Barack Obama has thus far resisted. However, were he to accept the cable's advice, he would risk a dangerous -- possibly catastrophic -- confrontation with Russia. And, such a use of military force in Syria would violate U.S. and international law.

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While the cable decries "the Russian and Iranian governments' cynical and destabilizing deployment of significant military power to bolster the Assad regime," the cable calls for the United States to protect and empower "the moderate Syrian opposition," seeking to overthrow the Syrian government.

However, Assad's government is the only legitimate government in Syria and, as the sovereign, has the legal right to seek international support as it has from Russia and Iran. There is no such legal right for the United States and other countries, such as Saudi Arabia and Turkey, to arm Syrian rebels to attack Assad's government.

The dissent cable advocates what it calls "the judicious use of stand-off and air weapons," which, the signatories write, "would undergird and drive a more focused and hardnosed US-led diplomatic process."

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Inside Syria, both the United States and Russia are battling the Islamic State (also known as ISIS) as ISIS and other jihadist groups seek to overthrow the Assad government. But while the U.S. is supporting rebel forces (including some fighting ISIS and some fighting Assad), Russia is backing Assad (and waging a broader fight against "terrorists," including Al Qaeda's Nusra Front). Reuters reports the U.S. has about 300 special operations forces in Syria for its "counter-terrorism mission against Islamic State militants but is not targeting the Assad government."

The policy outlined in the dissent cable would change that balance, by having the U.S. military bomb Syrian soldiers who have been at the forefront of the fight against both ISIS and Nusra. But that policy shift "would lead to a war with Russia, would kill greater numbers of civilians, would sunder the Geneva peace process, and would result in greater gains for the radical Sunni 'rebels' who are the principal opponents of the Assad regime," analyst James Carden wrote at Consortiumnews.com.

Journalist Robert Parry added that the authors of the cable came from the State Department's "den of armchair warriors possessed of imperial delusions," looking toward a Hillary Clinton administration which will likely pursue "no-fly-zones" and "safe zones" leading to more slaughter in Syria and risking a confrontation with Russia.

As we should have learned from the "no-fly zone" that preceded the Libyan "regime change" that the U.S. government engineered in 2011, a similar strategy in Syria would create a vacuum in which ISIS and Al Qaeda's Nusra Front would flourish.

Violating U.S. and International Law

The strategy set forth in the cable would also violate both U.S. and international law.

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Saudi King Salman bids farewell to President Barack Obama at Erga Palace after a state visit to Saudi Arabia on Jan. 27, 2015.
Saudi King Salman bids farewell to President Barack Obama at Erga Palace after a state visit to Saudi Arabia on Jan. 27, 2015.
(Image by (Official White House Photo by Pete Souza))
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Under the War Powers Resolution (WPR), the President can introduce U.S. troops into hostilities, or into situations "where imminent involvement in hostilities is clearly indicated by the circumstances," only (1) after a Congressional declaration of war, (2) with "specific statutory authorization," or (3) in "a national emergency created by attack upon the United States, its territories or possessions, or its armed forces."

None of three conditions that would allow the president to use military force in Syria is present at this time. First, Congress has not declared war. Second, neither the 2001 Authorization for the Use of Military Force (AUMF), which George W. Bush used to invade Afghanistan, nor the 2002 AUMF, which Bush used to invade Iraq would provide a legal basis for an attack on Syria at the present time. Third, there has been no attack on the United States or U.S. armed forces. Thus, an armed attack on Syria would violate the WPR.

Even if a military attack on Syria did not run afoul of the WPR, it would violate the United Nations Charter, a treaty the U.S. has ratified, making it part of U.S. law under the Constitution's Supremacy Clause. Article 2(4) of the Charter says that states "shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state."

The Charter only allows a military attack on another country in the case of self-defense or when the Security Council authorizes it; neither has occurred in this case. Assad's government has not attacked the United States, and the Council has not approved military strikes on Syria.

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http://www.marjoriecohn.com

Marjorie Cohn is a professor at Thomas Jefferson School of Law and immediate past president of the National Lawyers Guild. She is author of  'The United States and Torture: Interrogation, Incarceration, and Abuse, and 

Cowboy Republic: Six Ways the Bush Gang Has Defied the Law (more...)
 

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