When Congress reconvenes, the top item of business will be what to do about Syria. We generally steer clear of politics on this page, and we will not take on the important political issues here and abroad, hard as that is to avoid. We write instead because the Syrian question — whether to punish the regime of Bashar al-Assad militarily for its use of poison gas — raises fundamental issues to which all members of the bar, indeed, all citizens, ought to give careful attention. These questions are much more important than whether Assad can taunt President Barack Obama for failing to carry through on his threat of a punitive operation.
1) There is a civil war going on in Syria, with multiple insurgent forces arrayed against the Assad regime. The rebels do not present a coherent front. Some of the insurgent groups are Islamist or al-Qaeda-connected. It has been suggested that some have made use of poison gas.
2) There seems to be no doubt that the Assad regime used poison gas on innocent civilians, killing over a thousand of its own citizens. Syria signed the Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare in 1968.
3) President Obama announced that the Assad regime would be crossing a "red line" if it used poison gas.
4) The parties to the Syrian civil war are allied with a host of regimes and forces that wish the United States nothing but ill. Think Iran, Hezbollah, al-Qaeda.
5) Countries in the region, including some that are not Syria's neighbors but are not very far removed geographically, are facing their own highly-combustible internal issues. Think Lebanon, Iraq, Turkey, Egypt, Libya, Tunisia. The Middle East, in short, is a powder keg.
6) The United States is again/still facing a debt limit crisis. Our armed forces have been pressed to, and beyond, all reasonable limits by long years of high-tempo military operations in Iraq and Afghanistan. Memories of the weapons-of-mass-destruction rationale for invading Iraq are still fresh in Americans' minds.
7) Resistance by Russia and China precludes authorization by the United Nations of military operations against the Assad regime.
8) The Arab League has condemned the Assad regime's use of poison gas, but has not put its imprimatur on a punitive military operation.
9) Our most reliable partner in military coalitions has been the United Kingdom. The House of Commons rejected Prime Minister David Cameron's proposal to join the United States in a punitive operation against the Assad regime; the House of Lords voted 8-1 against.
There was a period of serious saber-rattling by the White House, leading up to the president's announcement that he would seek congressional approval for a punitive operation that would signal our condemnation of the Assad regime's use of poison gas to murder civilians. For a few days it looked as though Mr. Obama would give the go-ahead for such an operation without congressional approval. Passing over the fact that his improvident "red line" threat created a box from which he could not emerge gracefully, it is dismaying that he and his advisors thought even for a moment that they could commit the country to war (for it is hard to see a punitive mission as anything else) under these circumstances without invoking the authorization or approval machinery provided by Article I, section 8, clause 11 of the Constitution and the War Powers Resolution. Whether international law would also be violated by unilateral or, for that matter, coalition military action outside the UN ambit presents additional thorny issues that cannot be overlooked.
The Assad regime's poison gas atrocity — deeply worthy as it is of the world's condemnation – did not threaten the United States. So far as is known, no U.S. nationals were among the victims. There was no casus belli, in other words, and no basis for dispensing with the domestic legal procedures for initiating hostilities. Nor was there a need for hasty action, since the poison gas had already claimed its victims. (There have been no reports of threatened additional uses, although obviously that cannot be ruled out.)
Against this background, we are glad the president did not in the end act unilaterally, but instead has sought congressional authorization. Whether that authorization should be granted raises a policy question as to which the Editorial Board takes no position, but we hope there will be an illuminating, principled debate in the House of Representatives and the Senate. We also hope the issues will be closely and carefully considered in America's schools, colleges and homes.
If Congress is disposed to pass a Syrian Authorization for Use of Military Force, it should go about it more carefully than when it passed the post-9/11 Authorization for Use of Military Force, a document that proved far too broad.
We rue the fact that the administration came as close to acting unilaterally as it seems to have done, and applaud those legislators from both parties and across the political spectrum who spoke up to assert their right to be heard in this critical matter. This is what it means to have the rule of law, even — no, especially — when reacting to the lawlessness of others. It is human nature to want to respond promptly and vigorously to what happened in Syria. We must be ever mindful, however, that we live in a country where the rule of law must control. It is our duty especially, as lawyers, to be vigilant in defense of the rule of law.•