President Obama has bungled Syria. He said he’d enforce the accidental red line he drew on chemical weapons, then tacked to asking Congress for approval for military strikes, then swerved again to nudge the Russians to broker an unlikely deal with Assad. The zigzagging made his big speech Tuesday night confusing and unconvincing.
And yet, all of this looks pretty good at the moment if you’re tracking not Obama’s credibility or political skillsbut the rule of law. Of course it could all fall apart, but right now international and constitutional law are looking stronger than they did before the president got himself into his red-line mess.
There are two competing norms of international law at stake in the world’s response to the Syrian gassing: The ban on chemical weapons and the post-World War II system for maintaining relative peace around the globe—the 1945 U.N. Charter. The two norms are directly clashing at the moment. Syria never signed onto the Chemical Weapons Convention, in force since 1993. And the U.N. Charter requires the Security Council to approve the use of force Obama has planned—approval that Russia and China, which have veto power, won’t give. And so the big clash on the left is over which to value more: preventing the use of chemical weapons or maintaining the U.N. system that limits the legal use of force more broadly.
The pro-intervention argument, made forcefully by Obama’s U.N. ambassador, Samantha Power, values enforcing the chemical weapons ban over respecting the procedures by which the U.N. operates. If the Russians are holding the Security Council “hostage,” as Power says, then the U.S. gets to opt out. The contrary, not-so-fast argument, captured by Yale law professors Oona Hathaway and Scott Shapiro, is that all of our breaches of U.N. rules “add up — and each one makes it harder to hold others to the rules. If we follow Kosovo and Iraq with Syria, it will be difficult, if not impossible, to stop others from a similar use of force down the line.” Hathaway and Shapiro are reminding the country that opting out of the U.N. rules isn’t free, no matter how worthy the humanitarian rationale. They want Obama to think about whether punishing Assad’s use of chemical weapons “is worth endangering the fragile international order that is World War II’s most significant legacy.”
The president seemed inclined to brush by this question. But the country, plus our reluctant allies—thank you, Britain—wouldn’t let him. The continuing lack of support at home and abroad for striking Syria forced Obama to say he would go to Congress. And that’s a victory for another kind of rule of law: The Constitution’s war-making powers. Presidents have taken more and more of this authority, either because they’ve usurped it or because Congress has handed it over. Obama did his own grabbing when he intervened in Libya without going to Congress first. The War Powers Act—the congressional answer to Vietnam—should have stopped him. It didn’t.
But Obama declined to take presidential power that one more step. Without NATO, or decent poll numbers to back him up, Obama decided he had to have Congress behind him. This isn’t the most high-minded way to get there, but I’ll take it. Score one for limiting executive power as the Constitution calls for.
Skeptics, among them Slate columnist Eric Posner, point out that Obama keeps saying he retains the power to strike Syria even if Congress votes against him. And so he’s aggrandizing rather than humbling his office. Another problem is that the legal rationale the administration is floating—that the president can bomb another nation, on his own, based on his own decision that an "important national interest" is at risk—is crazy broad. It sounds like anything goes, who needs Congress, unless American troops are going in on the ground.
But as long as Obama doesn’t actually strike Syria if Congress won’t authorize it—and isn’t that becoming unimaginable?—these excesses are like the bad night of drinking that doesn’t end in actual injury.
I do see an obvious pitfall here: Future presidents could run away from Congress based on the Obama experience. Don't take anything to Congress because it's a huge mess! But hang on. What if this all ends better than it began—what if the Russians get more from Assad than bombs would have? Yes I know that securing Syria’s chemical weapons will be enormously difficult, practically speaking. But think about it: Syria just admitted for the first time that it has chemical weapons and announced that it wants to sign on to the treaty that bans them. Russia is pressuring Assad to do something good rather than standing by and letting him do evil. If any kind of deal can be cobbled together, it will be a net gain. Obama will be right that it would never have happened without the credible threat of the use of force. And at the same time, as long as the threat doesn’t materialize, it won’t erode the international system of law or the Constitution’s division of powers either. Given how very badly this could have gone for both—and could still go—that sounds like victory to me.