Marty Lederman writes in with a response to my last post:
A quick, response to Jack's reading of the President's remarks in Stockholm yesterday:
One should be very cautious, of course, about reading too much into an executive's particular phrasing at a press conference--it is rarely the sort of thing that has received careful, interagency vetting, or that the President intends to articulate the nation's formal opinio juris. If and when the President or the State Department issues a more formal statement, as did Mike Matheson after the Kosovo operation, we will have a better sense of the official U.S. view.
Having said that, I don't think it is right to view President Obama's comments as "mark[ing] the death knell for the long-held USG view that humanitarian intervention without Security Council approval violates the U.N. Charter," or that it "announces a major change in the USG’s interpretation of the most fundamental treaty." To the contrary: As I read those comments, the President was implying, quite forthrightly, that because the UNSC system is often dysfunctional when humanitarian crises are at stake, there may be times when breaches of Article 2(4) of the Charter are legitimate or even morally compelled--particularly in the service of remedying and deterring breaches of certain fundamental jus in bello norms established in international law.
What the President goes on to suggest, however, is that "in those circumstances"--that is, when "humanity is impacted in a profound way" but the Charter system is incapable of action--"it’s important for us to get out of the habit" of the President acting unilaterally. That is to say, such a breach of a treaty obligation is a very solemn thing, one that ought to be done only rarely and reluctantly, and--most importantly--with the concurrence of Congress, rather than by the President alone.
The other day, I suggested that the President does not have the constitutional power to unilaterally put the U.S. in violation of a treaty obligation, even when it might be the morally proper course of action--which is why I continue to think the Kosovo decision was so troubling from a constitutional perspective. I doubt President Obama was contending that congressional approval is constitutionally mandated if the U.S. is going to violate Article 2(4) -- a question that he need not confront now -- but I do think he was suggesting that it is the much better course of action for such an important decision. I agree.
Marty is right that Executive phrasing in a press conference does not necessarily constitute an official USG view on international law. But the President has twice in one week dissed the need for a UNSC Resolution before intervening in Syria, and everything about the administration’s action over the past few weeks confirms that it believes that compliance with the U.N. Charter’s use of force requirements is not necessary for an intervention in Syria.
The question then becomes: What is the USG theory that it can intervene in Syria without UNSC approval? I interpreted the President’s remarks and the USG position to be that the United States was not violating international law because the Charter could be interpreted in a way that permits humanitarian intervention. Marty says, to the contrary, that the President is acknowledging a breach of international law (the Charter) and saying that the breach is justifiable. This is indeed a plausible alternative construction of the President’s remarks. But I do not see why it is a more attractive interpretation than the one I offered.
First, since the President believes he has the authority to intervene in Syria without congressional authorization, and since (on Marty’s view) the President thinks he has the authority to intervene in Syria in violation of international law, the President must think that the Take Care clause of Article II (which imposes on him a duty to “take Care that the Laws be faithfully executed”) imposes no duty to comply with non-self-executing treaties like the Charter. That is a very large constitutional implication from the President’s legal posture in Syria, and one that Marty thinks is problematic. (As Marty says, the congressional approval for use of force sought by the President, if it comes through, will render this constitutional implication moot, for it is settled that Congress can violate international law. Marty thinks this is an important reason to go to Congress, and he is right. Nonetheless, the President’s position that he can go forward without Congress implies that he or his lawyers believe that he has no constitutional duty to comply with non-self-executing treaties.)
Second, Marty’s interpretation of the President’s remarks puts U.S. soldiers carrying out the President’s commands in an awkward position. Every U.S. soldier is taught the importance of complying with law, including international law, in every task he or she undertakes. They are also taught that dishonor or worse follows from violating this law. Many of the soldiers and all of the lawyers involved in the Syria planning will surely feel at least a little uneasy about a military action that the President acknowledges does not pass the test of international legality.