White House Counsel’s Legal Justification for Syria Intervention

By Jack Goldsmith
Monday, September 9, 2013, 1:55 PM

Julian Ku is right to poke fun at the administration for conveying its vague and conclusory legal rationale for intervening in Syria through the reporting of the NYT’s Charlie Savage.  But vague and conclusory guidance via the NYT is better than no guidance at all.

On the international law rationale for intervention, Savage says:

Kathryn Ruemmler, the White House counsel, said the president believed a strike would be lawful, both in international law and domestic law, even if neither the Security Council nor Congress approved it. But the novel circumstances, she said, led Mr. Obama to seek Congressional concurrence to bolster its legitimacy. . . .

Ms. Ruemmler said that while an attack on Syria “may not fit under a traditionally recognized legal basis under international law,” the administration believed that given the novel factors and circumstances, such an action would nevertheless be “justified and legitimate under international law” and so not prohibited.

I read this as the administration saying that the strike in Syria would be lawful under international law, and rejecting the “illegal but legitimate” rationale of Kosovo (and thus supporting my interpretation of earlier statements in my friendly disagreement with Marty Lederman, here and here.)  Some of the commentators on Julian’s post think the administration is adopting the “illegal but justified” rationale, probably because some of the language in the second paragraph above sounds like the mumbo-jumbo account of “illegal but justified” after Kosovo.  It is impossible to know for sure from these snippets, but I note that Savage reports that “the president believed a strike would be lawful . . . in international law.”  It will be interesting to learn how the President reached this conclusion, which relatively few others embrace.

On the domestic constitutional front, Savage says:

In recent weeks, administration lawyers decided that it was within Mr. Obama’s constitutional authority to carry out a strike on Syria as well, even without permission from Congress or the Security Council, because of the “important national interests” of limiting regional instability and of enforcing the norm against using chemical weapons, Ms. Ruemmler said.

This is almost precisely the rationale I predicted a few weeks ago in a post on administration lawyers’ probable thinking, which is less a testament to my foresight than it is to knowing the relevant OLC opinions well and understanding how they would need to be expanded to account for Syria.  I explained in that post why I think this rationale removes any effective limit on the “national interest” prong of OLC’s (expansive) precedents for presidential military unilateralism.  This rationale appears to entail that the President can use “war at a distance” (drones, cyber, long-range missiles, maybe more) essentially whenever he thinks it important, subject only to the limitation that he cannot go further and put American troops in serious harm’s way (boots on the ground and the like) without congressional approval.

All of this analysis is, of course, subject to change if and when an official legal opinion emerges in public.