Current Affairs

Laws Apparently Just Don’t Apply to Presidents

Now that Biden has bombed Syria in direct violation of international and domestic law, it’s hard to believe Democrats who talk about the importance of rules.

Joe Biden’s bombing of Syria was a clear violation of both domestic and international law. The president cannot order an offensive military attack in a sovereign foreign country without Congressional approval, and Biden did not have Congressional approval for the attack. But even if Biden had had Congressional approval, the attack was illegal. The United Nations charter is very clear that sovereign countries cannot be attacked except in self-defense or by resolution of the Security Council.

This is not debatable. It’s very clear law. As Notre Dame international law expert Mary Ellen O’Connell explains, Biden committed a grave and obvious violation:

The United Nations Charter makes absolutely clear that the use of military force on the territory of a foreign sovereign state is lawful only in response to an armed attack on the defending state for which the target state is responsible. None of those elements is met in the Syria strike. There is no right of reprisal, right to use military force for deterrence, right to attack Iran on the territory of Syria, or right to use major military force in response to the type of violence that occurred last week.

The facts of the attack are as follows: On February 15, there was a rocket attack that killed a Filipino contractor at an airport in northern Iraq that partly serves as a U.S. military base, and wounded several others including a Louisiana National Guard member. Responsibility for the attack “was claimed by a previously unknown armed group calling itself the Guardians of the Blood.” Ten days later, on February 25, the United States conducted an air strike several hundred miles away on “a collection of buildings on the Syrian side of a border crossing with Iraq,” “destroying nine structures and partially destroying two.” According to the Syrian Observatory for Human Rights, at least 22 people were killed in the U.S. attack, and “most of [the victims] were members of Iraqi militias.” Reuters cited a death toll of 17, quoting a local medical source. 

The United States made it clear that the purpose of killing these people was to send a “message” to the government of Iran (not Syria, the country on which bombs were dropped, or Iraq, where the militia was from.) The U.S. government believes that those who carried out the attack on the airport were “proxies” for Iran (though NBC News says it “was unclear if Iran had encouraged or ordered the rocket attack”), and that those it killed in retaliation were also proxies for Iran. This, the U.S. government reasoned, made the attack an act of “self defense.” Of course, news headlines treat the fact that the militias are “Iran-backed” as a given, without papers feeling the need to explain what exactly the evidence is and how conclusive it is.) 

To sum up: a little-known group called the “Guardians of the Blood” killed someone in one country. The United States responded by killing 22 people, who were not members of the “Guardians in the Blood,” in a different country in order to send a message to a third country.

Here are some questions you might have about these facts: what evidence does the United States have linking Iran to the death at the airport? What evidence does the United States have that the group of people it murdered in response were acting on behalf of Iran, when they may have been “on the Iraqi government’s payroll as part of the Iraqi security forces”? The group whose members were killed, Kataib Hezbollah, “says it maintains a presence at the border crossing to prevent the infiltration of Islamic State fighters into Iraq.” What evidence did Biden have to refute the claim of the group that they are anti-Islamic State fighters who have absolutely nothing to do with the airport attack? You will not find answers in the news articles about what happened, and the Secretary of Defense offered only cursory facts before saying there was “not much more that I’ll be able to add at this point other than the fact that we’re confident in the target we went after, we know what we hit.” (Oh good, they know what they hit. To be fair, even that minimal threshold of “being aware of what you are bombing” is not always met by the United States—see, for instance, the Obama administration’s bombing of a Doctors Without Borders trauma center in Afghanistan, which murdered dozens of patients.)

Were the people Biden ordered killed responsible for the attack on the U.S. base? We don’t know, because the Biden administration has not said. In fact, some of the reporting suggests that they didn’t really care, that their reasoning process was: group A is a militia we think is a “proxy” for Iran, group B is also a “proxy,” thus group B is responsible for the acts of group A and killing a few of them will send a “signal” to Iran that the actions of group A will not be tolerated and will rein in group A. 

The U.S. media is such a reliable mouthpiece for the United States government that you will find very little discussion of questions about evidence, or questions like: why does the United States even have an airbase in northern Iraq given that the Iraqi parliament voted to expel U.S. forces last year (the Trump administration, rather than complying, threatened to impose sanctions on Iraq for having the audacity to assert it had a right to decide whether to be occupied militarily)? Is an attack by Iraqis on an occupying foreign power justified? When we read reports that “the decision to strike in Syria instead of Iraq was likely to avoid causing issues for the Iraqi government,” why would it have “caused issues” for the Iraqi government? Is it because Iraqis might have resented the killing on Iraqi soil of Iraqi anti-ISIS militia members who may have been on the Iraqi government payroll? 

What about questions like: is it legitimate to kill nearly two dozen people to “send a message” in response to the death of one? (It is worth pointing out that “responding to the death of one person by killing ten” is the same method the Nazis used to “send a message,” and it is very effective but is also sociopathic.) How certain should we be that a country is responsible for an attack before taking lives in response?

These are moral questions, which hardly ever get asked about U.S. foreign policy. The legal questions don’t even need to be dwelled on, because it’s so clear that what the U.S. did was illegal under both domestic and international law. Biden has no authority to launch a strike like this without Congress. Biden’s own press secretary, Jen Psaki, pointed out when Donald Trump struck Syria in 2017 that the administration had cited no legal authority for striking a sovereign country.

 There was no reason Biden could not have gone to Congress for authorization. The retaliatory strike was ten days after the airport attack and the administration did not even attempt to argue that the U.S. was trying to stop an imminent threat. But Congress might have demanded a greater case be made than just “killing some members of this group will successfully persuade Iran that we are not afraid to commit senseless acts of murder.” (Although if Congress had declined to authorize the use of force in Syria, Biden might well just have gone ahead and used it anyway, like Obama did when Congress declined to give him new authority to wage war.) 

To the extent that Biden’s actions have been criticized by some Democrats, it has mainly been because he lacked Congressional authorization for the strike and acted unilaterally. But it’s even more important to note that Biden violated international law, meaning that even if Congress had approved it, it would still have been illegal. Countries cannot just bomb other countries to send messages. The international community has to react very strongly against any power that tries to do this, because if it is not universally condemned and those who do it are not punished, all international law will become meaningless.

In the U.S., there is often cynicism toward international law, and I can already hear people laughing “Become meaningless?” I would strongly discourage people from succumbing to the temptation to treat international law as already dead, however. The most serious problem is that some outlaw countries (mostly rich and well-armed ones like the U.S., U.K., Russia, China, Saudi Arabia, or Israel) feel like they can violate it with impunity and don’t even consider it serious enough to be worth discussing, and the worst offender here is the United States. If U.S. politicians started actually taking international law seriously, and we cared whether presidents respected it, it would vastly increase the prospects for global peace. 

In fact, if we are being honest and consistent, Joe Biden should be impeached over this. Do you remember what the first impeachment of Donald Trump was about? It was about Trump threatening to withhold military aid from Ukraine over his demand that the country investigate Joe and Hunter Biden. This is a far more serious offense, because at least 22 people are dead and a sovereign foreign country has been attacked. 

The Biden administration’s claims that the attack was in self defense cannot be taken seriously. The U.N. makes it clear that all peaceful means of resolving conflicts have to be exhausted before resorting to violence, and no attempt was made here. Syria, the country attacked, did not attack the U.S. It did not threaten the U.S. The militia that was attacked did not attack the U.S. either. Biden’s own administration’s statements admit that this was an attempt to put pressure on Iran by showing that We Mean Business. Biden’s theory of self defense is the same one deployed by the Bush administration in characterizing the offensive Iraq war as a defensive act. If this qualifies as “self defense,” then the term becomes meaningless. It was a retaliatory strike meant to communicate a message. Retaliatory strikes are illegal, and the U.N.’s declaration of principles of international law is very clear that “states have a duty to refrain from acts of reprisal involving the use of force.” (In fact, it’s even questionable whether the U.S. was justified under law in attacking Syria in response to actions by the Syrian government against Syrians. But this violation of Syrian sovereignty was not even in response to anything done by Syria.) The U.S. likes us to think of Russia as the international criminal syndicate and ourselves as the hero-state, but it’s hard to argue with the Russian foreign ministry’s statement on the U.S. strike, which “call[s] for unconditional respect for the sovereignty and territorial integrity of Syria” and “reaffirm[s] our rejection of any attempts to turn Syrian territory into an arena for settling geopolitical scores.” A settling of a geopolitical score is essentially what the Biden administration admitted this was. 

The only reason that this isn’t being treated as a grave offense by the Biden administration is that this kind of lawless violent action by presidents has become so normalized over the past decades that “bombing the Middle East” now seems like part of the job description. As law professor Anthony Gaughan notes:

For the last 25 years, Democratic and Republican presidents alike have repeatedly bombed countries (and, in the case of Iraq in 2003, invaded and occupied a country for nearly a decade) without a basis in international law for doing so. In each case the public displayed complete indifference to the lack of legal authority for the military operations.

Gaughan goes through and shows that U.S. actions are plainly illegal, but because international law is treated with contempt and indifference here, “presidents do not even bother anymore to make serious legal arguments for dropping bombs on other countries.”

The Biden administration is clearly not going to change this. They are going to disregard the law when they like. In fact, there was another example of that this week, as the administration made it clear that it believes Mohammed Bin Salman (MBS) ordered the murder of Saudi dissident (and Washington Post columnist) Jamal Khashoggi, but declined to enforce U.S. law placing travel restrictions on those known to have ordered extrajudicial killings. The Biden administration openly said that it believed this would harm relations with Saudi Arabia—yet again, the law is treated as meaningless when it conflicts with our preferred geopolitical strategy and would require us to irritate despots we like. It’s particularly twisted because this attack on Syria occurred nearly simultaneously with the administration’s announcement that it would stop trying to get a $15 minimum wage into the COVID relief package, because the unelected Senate parliamentarian said this would violate Senate rules. Biden cares about the rules when they come from the Senate parliamentarian and prevent a rise in the minimum wage, but apparently not when they come from the United Nations and the Constitution and prohibit murder. 

The attitude of the public toward these criminal acts needs to change. I am tired of lawless attacks on Middle Eastern countries being treated as something a president is just entitled to do whenever it interests them. If the U.S. gets to do this to others regardless of law, what moral right do we have to tell other countries not to do it to us? Biden is doing very serious harm to the cause of global peace by twisting the term “self defense” to capture calculated retaliatory strikes that occur without any attempt to use peaceful means. He is affirming a view that can be used to justify totally gratuitous acts of mass murder (where you kill 20x as many people as were killed of your own forces) in the name of “defense.” This is truly Orwellian stuff. 

If there is no outrage about this now, Biden will understand that he can do precisely what his predecessors did, without consequence, and people will die. When the administration wants to communicate something to a rival power, the Pentagon will suggest a series of targets from a list, and he will go through and pick one to blow up, and no evidence will have to be presented to anyone other than Biden that it’s wise or justified. There will be zero accountability. 

A few Democrats have questioned the Biden administration over this. Ilhan Omar demanded that the administration justify the strike’s legality—though her statement emphasized the lack of Congressional approval rather than the violation of international law. There need to be hearings and protests over this. If we do not shake ourselves out of passivity here, if we hear “the president launched an airstrike on X” today and do not raise our voices in opposition, the “forever wars” will never end. Just because this has been done for decades does not mean we have to continue to accept presidential criminality as unavoidable.

Biden’s offense, ordering the deaths of 22 people in sovereign foreign territory in violation of the Constitution and international law, is much worse than the Ukraine call Trump was impeached over. This is a serious abuse of power and needs to be treated as such.

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