The Guardian (UK) posits that "The strongest legal argument in favour of military strikes is humanitarian intervention."
Well, I linked earlier today to Terry Newell's discussion of that point so I won't recover it here. But here is the comment I left at The Guardian's article:
Even stipulating that bombing Assad's forces may be justified under humanitarian concerns, what the Guardian is conflating is the difference between moral justification of war and legal basis for it. They are not the same.
Under classic just war theory, both just cause and rightful authority are required. In Syria today there may be just cause for Western intervention, but so far there has been no rightful authority for it.
Under US law this is drawn more sharply than under most European law. Since the dawn of the American republic, the Congress and the presidents have generally agreed that the president may order US forces into combat against another nation, solely on his own authority, if and only if there is:
1. Imminent danger of attack from the other power, so imminent that time taken for Congressional deliberations would hinder defense against it, or,
2. To protect actual threat against US citizens abroad, or to rescue them from actual danger.
The Obama administration has admitted that neither of these pertain in the case of Syria. [More technically, Obama has not asserted either, which is a distinction without a difference.]
Therefore, if Obama orders US strikes against Syria, no matter the moral justification of them, the United States will have failed the test of rightful authority and, as then-Senator Joe Biden said in a speech to Congress in 1998, the president would be wielding "monarchist" power for which, in 2007, Biden specifically said warranted impeachment. (Somehow, today he sings a different tune.)
If the cause is humanitarian, the president has not even attempted to define it other than vague assertions of violations of "international norms." But norms come and norms go, so that doesn't hold up. Besides, Syria is not a party to either the Biological Weapons Convention of 1972 nor the Chemical Weapons Convention of 1993, which, unlike, say, conventions against piracy or slavery, are not considered binding on non-signatories.
Furthermore, there is no threat to the United States or to the Syrian people that is so immediately imminent that no time dare be spent in Congressional deliberation to authorize the strikes. If there is, the president should explain why, with 100,000 already dead, a few more days of deliberation is unwarranted. After all, under the Constitution, the president can order the Congress back into session. If Obama wanted, he could have the Congress deliberating within 36 hours.
We'd do well to remember the ancient proverb. "Decide in haste, repent in leisure." This is by any measure a true rush to war. Why all of a sudden the "fierce urgency of now?" and not after Congressional authority?
Well, here is a clue. CNN reports that a "senior White House official" told the network that, "Factors weighing into the timing of any action include a desire to get it done before the president leaves for Russia next week."
Meaning the proposed air strikes are not even about humanitarian concerns. They are really about Obama trying to look tough before he meets with Putin.If someone can come up with a better explanation for shutting the Congress out than Obama wanting to appear personally strong and in command, unhindered by the slow plodding of democratic processes, when he meets Putin next week, I'd really like to hear it.
If US forces are to attack Syria, it cannot lawfully be done absent Congressional authorization. That would not make an attack wise by any means, but it would make it legal, and at the minimum that should be the starting point.
Update: The ranking Democrat on the House Judiciary Committee agrees.