Balkinization: Syria is a "they," not an "it"

Syria is a "they," not an "it"

Sandy Levinson

On the offhand chance that few people actually scroll down and read the comments, I'm taking the liberty of reprinting an exchange between "Joe," who constantly offers probing comments, and myself. First "Joe":

Kerry and individual senators have spoke of evidence that Syria (I take this to mean Assad, since the country isn't a democracy and all) used chemical weapons and the AUMFs offered by Senate and House Dems speaks of such "findings." Kerry said it was "beyond a reasonable doubt." I take this to mean they claim some sort of "smoking gun."

Wariness about such assurances is by now quite appropriate, but it is much harder to go to the other extreme and say there is "no evidence" or whatever. And, there very well might be a reason to not fully air all the evidence, depending on the secrecy of some of the sources. But, I thought I read somewhere that the Administration did submit 'smoking gun' evidence, though I don't know if is some place for the public to examine in full.

Sandy Levinson said...

Frankly, one of the pathologies of our thinking is the belief that "dictators" are omnipotent (or, as I originally had written, omniscient) within their countries. Assad may have more power than any single individual in Syria, but that isn't evidence that not a sparrow falls that he isn't responsible for. Even Hitler's Germany was more pluralistic bureaucratically than we tend to think it was (which doesn't mean that he wouldn't have deserved to hang for war crimes). One of the many points of Christopher Clark's The Sleepwalkers--yes, that again--is that neither the Kaiser nor the Tsar was capable of exercising snap-of-a-finger control over their complex countries and bureaucracies (and, especially, militaries).

Again, we bend over backwards to avoid command responsibility in this country, but are promiscuous in assigning it with regard to countries (and leaders/dictators) we don't like.

As Adrian Vermeule constantly points out in his writings on US institutions, Congress, the Supreme Court, the "presidency" etc. are "theys," not "its." There may be some variation in the degree of "they-ness," but it's always valuable to ask tough questions instead of assuming that X is in control of any and all events.

If Congress authorizes an illegal (under international law), it's hard to argue that it would not raise exponentially the pressure on Obama to go to war (which is what a "surgical strike is"--we shouldn't kid ourselves otherwise) with unknown consequences. I agree with Jack that a rejection of authorization would have almost no consequences for the 2014 elections and for Obama's domestic prospects. Frankly, I think he is already regarded as so feckless that one more episode (on top of not only failing to close Guantanamo, but also leaving in that hellhole many prisoners who have long been cleared for release; his compromising on the debt ceiling, the sequester, his seeming insistence on appointing Larry Summers, the leading "confidence man" (everyone should read Ron Suskind's book of that title) isn't going to change things dramatically, especially when he can frame his backing down as required by elemental respect for a decision by the Congress of the United States with respect to a decision to go to war. I continue to hope (and, as we enter the Rosh Hashanah-Yom Kippur season, pray, at least if I believed in prayer) that the US will be saved from Obama's (and now McCain's) folly.

UPDATE: I strongly recommend reading the two columns in tomorrow's Washington Post first by Dana Milbank and then by David Ignatius. I won't bother indicating my preference: I assume that most of you will be able to figure it out.

Posted 10:12 PM by Sandy Levinson [link]

Comments:

In fairness to Joe (who can certainly speak for himself), I think Sandy's selections of comments fail to provide the full picture of the "debate" on evidence between him and Joe. I think a full read of Sandy's earlier post and all of the comments is necessary to understand this "debate." Frankly, when I read Sandy's comment (10:00 pm) at the earlier post, it wasn't clear to me that he was responding to Joe's earlier comment (2:03 PM). An 8 hour response spread in prime time seems to me a long time. But Joe had earlier comments on evidence. So for context on this evidence "debate," I think in fairness one has to go back to the earlier post and read it, comments and all, in their entirety. And Sandy, in his closing paragraph of this post (preceding his UPDATE), throws in the kitchen sink with Guantanamo, Larry Summers and the upcoming Holidays, perhaps expanding the evidence "debate" a tad, in addition to the new "pronoun debate" bootstrapping Prof. Vermeule whose writings may inspire an even newer "debate."

# posted by

Shag from Brookline : 7:14 AM

To paraphrase our former secretary of state, I find it hard to see what difference it makes whether Assad used chemical weapons or not. I take it that no one, including Assad, disputes that Syria has compiled large stocks of chemical weapons. Nor is there any doubt that Assad has killed tens of thousands of Syrian civilians by conventional means. Putin’s argument is solely that Assad had no motive to use chemical weapons, not that he wouldn’t use them if he had to. So both Assad’s friends and his enemies agree that he will use chemical weapons in the future if he thinks it is in interest to do so.

The question we should be asking is whether it is in our interest to strike Syria in the manner proposed. We do have important interests in Syria, namely to contain Iranian influence and prevent Syria from becoming an ungoverned region like Lebanon (with the attendant possibility of various extremist factions flourishing and/or getting access to those chemical weapons). But these interests have virtually nothing to do with whether Assad used chemical weapons last week (or ever). Similarly, whether the proposed strike advances our interests is a completely separate question.

If we acted based on national interest, rather than sounding like we are trying to decide a criminal case, the rest of the world would probably be less suspicious of our motives. Nobody really believes that our actions are motivated by the pure moral/legal considerations that we claim, and people would be less likely to look for more sinister motives if we stopped making those claims. Also, I would rather have people like Assad asking whether their actions are likely to impinge on core US interests than trying to figure out how they can get around some arbitrary red line that Obama has drawn.

# posted by

mls : 8:21 AM

I am like an alien in your nightmares with my "probing." Seriously, I appreciate it though I would suggest italics or something to block off what we each said for better reading. Thanks to Shag for his comment as well.

---

I understand that Assad does not have unlimited powers and that dictators have various levels of actual power, which is somewhat good for the populace, since it provides some check.

My comment was in response to the argument that "there is no evidence that Assad ordered the use of those weapons in the first place." My comment focused on "Assad" because the original post did as well.

I assume that SL used "Assad" here in a somewhat general way; that is, if top generals, e.g., ordered the use, that is, some official Syrian use of force was at issue, it wouldn't change the reasonableness of using force one way or the other. If it does, SL can respond on the point.

Anyway, I agree that when we say "the President" or even single members like "McCain" that they are somewhat representational. They don't act on their own, full stop. And, if we bomb Syria, "Assad" isn't the only one who will get hurt.

As to the int'l law point, two good discussions, somewhat on both sides:

http://prawfsblawg.blogs.com/prawfsblawg/2013/09/the-legal-case-for-intervening-in-syria-anthony-colangelo-guesting.html#more

http://www.dorfonlaw.org/2013/08/three-problematic-justifications-for.html

# posted by

Joe : 10:29 AM

mls' comment raises the issue of whether the situation in Syria even apart from the use of chemical weapons involves America's national interest. mls uses that term in his closing paragraph, whereas in the preceding paragraph in "interest" and "interests" are used several times without the designation "national."

Can America take military action against Syria in its "national interest" without UN Security Council approval? If so, what form might that military action take? Does taking the almost universal prohibition of the world's nations against the use of chemical weapons going back almost 100 years out of the discussion permit America to proceed with military action (of some sort) against Syria without either UN Security Council approval or perhaps NATO approval or the approval of a vast international group including many Middle East nations?

mls extends the debate, which is not a bad idea. I have started to read Obama's May 2010 National Security Strategy but have been slowed down by vision problems. I hope to finish reading it in the next day or so. But so far I have the feeling that an update of the National Security Strategy may be in order as events unfold. I thank mls for extending the debate here. As I noted in a comment on Sandy's earlier post, there is the issue of America in the role of the world's policeman. Our Constitution provides for treaties as included in the law of the land. There are several treaties at issue. Do these (or some of them) clash with America's "national interest"?

# posted by

Shag from Brookline : 10:44 AM

"Obama" alone didn't draw the "red line" involving chemical weapons. Chemical weapons were specifically targeted by treaty requirements.

The special needs to address the dangers of chemical weapons in this respect is so broadly a concern that a domestic dispute was criminally targeted arising from it -- see Bond v. U.S., which will come back to the USSC in the '13 term.

The amended Senate AUMF, which Obama commended so I reckon he now "owns it" too, did not just focus on chemical weapons. The whole situation in Syria and our own interests were also cited. Neither the U.S. or the U.N. for that matter react (with force or not) to each violation of international law the same way for a reason.

Obama has spoken of the "our long-term national security" interests here.

http://www.lawfareblog.com/2013/09/two-important-implications-from-presidents-press-conference-in-sweden/#more-24537

But, he thinks this includes enforcing international norms on chemical weapons and using certain standards of force, including ones that require some real limits, even if it "sounds like we are trying to decide a criminal case" when doing so.

I think it makes a "difference" that chemical weapons is involved. It might not make enough of a difference for it to be the sine qua non, but it doesn't appear it is the only thing being weighed anyhow. Also, I think there still are certain things seen as specifically wrong.

# posted by

Joe : 11:54 AM

I confess I was reading "Assad" quite literally instead of as a metonymy for "any reasonably high-level Syrian official." There will almost always be slippage in any complex bureaucracy. If we can identify specific miscreants, then target them, either by drones or by citing them to the international criminal court. But unless we have good reason to believe that a particular instance represents a genuine "public policy" traceable to the highest levels of leadership, it is a dicey proposition to base war-like acts on only a hypothetical presumption. And, as I've repeatedly suggested, the United States has remarkably dirty hands with regard to accepting command responsibility for torture.

What if the attack on the Pentagon had been in 2004 instead of 2001 and had been defended as the "enforcement" of international norms against torture vis-à-vis a rogue country that clearly was unwilling to comply with those norms? In terms of international law and jus cogens, the ban on torture is surely as basic as the ban on the use of chemical weapons.

# posted by

Sandy Levinson : 6:26 PM

I agree there is reason for doubt. My concern was the idea there was "no" evidence. I don't think that has been shown -- one of the links in effect be-cried the inability to really judge the fact by putting things out in the open. If the argument is that there is "not enough" evidence, I have no desire to challenge that.

The Senate AUMF etc. as noted talks of a combination of things, so the bombing the Pentagon scenario would also have to be a result of a judgment that, taking things as a whole, that would be the most productive way of doing things while advancing the interests of the bombing party.

It isn't merely the concern to stop usage of chemical weapons, let the heavens fall. As to the latter case, I would be a tad biased as an American citizen, but I would -- on balance -- oppose bombing in both cases.

Of course, realpolitik is involved here, given the power of the U.S. As suggested by one of my links, the logic of our bombing here could justify, even w/o UN action (quite likely given our veto), let's say an international seizure of Gitmo because of violations of international law there.

The U.S. as a whole is not quite as much as a "rogue country" as Syria, including its killing of so many people and the state of affairs regarding rebels, though in a fantasy world, it is possible that some measured action against the U.S. would occur, such as the prosecutions in Italy connected to extraordinary rendition.

# posted by

Joe : 9:38 PM

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# posted by

Unknown : 9:18 AM