Enforcing the Red Line Against Assad’s Chemical Weapon Use
In August 2012, a “red line” was drawn against the use of chemical weapons in Syria. That red line was enforced four-and-a-half years later last night.
BACKGROUND
In July 2014, then-Secretary of State John Kerry said we had “struck a deal where we got 100 percent of the chemical weapons out” of Syria. In November 2015, the U.S. Representative to the Organization for the Prohibition of Chemical Weapons said the use of chemical weapons in Syria had become “routine.” In August 2016, then-U.S. Ambassador to the United Nations Samantha Power observed that the United Nations had completed a report finding that Assad engages in “repeated use” of chemical weapons in Syria.
As an example of this, in the last two weeks alone, the Assad regime has used sarin nerve agent in chemical attacks against its own citizens on three separate occasions (March 25, March 30, and April 4).
Last evening the United States conducted a cruise missile strike targeting Shayrat Airfield in Syria, the airfield assessed to be from where the April 4 chemical weapons attack was launched. The Department of Defense described that 59 Tomahawk Land Attack Missiles launched from two destroyers in the Eastern Mediterranean Sea targeted “aircraft, hardened aircraft shelters, petroleum and logistical storage, ammunition supply bunkers, air defense systems, and radars.” This airfield “was used to store chemical weapons.”
INTERESTS PROTECTED
The military action had a very particular purpose — to hold Assad accountable for his most recent use of chemical weapons, with the intent “to deter the regime from using chemical weapons again.” To be sure, as National Security Advisor H.R. McMaster said last evening, the Assad regime will maintain the capacity to commit mass murder with chemical weapons beyond this particular airfield, but “it was not a small strike” at this particular facility, which was involved in the most recent attack. “There were a number of targets that were associated with the ability of that airfield to operate and continue mass murder attacks against Syrian civilians,” he said.
To this end, in addition to degrading the capacity of this particular facility, this action has disabused the Assad regime of the idea that the international community, and the United States in particular, would do nothing kinetic in response to the use of chemical weapons. As the National Security Advisor said last evening, this action should communicate “a big shift in Assad’s calculus,” because this is the first time the United States has taken direct military action against the Assad regime.
The action can be seen as a concrete action directed at resuscitating the international norm against the use of chemical weapons. As the Department of Defense statement said, “the use of chemical weapons against innocent people will not be tolerated.”
LEGALITY
In the coming days the executive branch should more fully articulate the basis for the president’s legal authority to carry out last night’s actions. The president’s statement summarized his position on the matter. Much of it revolves around the interest in defending the international norm against the use of chemical weapons.
Domestic Law
As a matter of domestic law, the president said it is a “vital national security interest of the United States to prevent and deter the spread and use of deadly chemical weapons.”
In addition to Assad’s clear “use” of chemical weapons, on the proliferation point, the Secretary of State last evening said “if there are weapons of this nature available in Syria,” there is an interest in securing those weapons so they do not “fall into the hands of those who would bring those weapons to our shores to harm American citizens.” This threat is real, given 1) ISIS has used chemical weapons in Syria, 2) the robust ISIS presence in Syria, and 3) the civil war and general ungoverned and chaotic nature of Syria.
The Commander-in-Chief generally has broad authority to employ military force abroad for the purpose of protecting vital national security interests of the United States in the absence of specific congressional authorization. But that authority is, of course, not unlimited.
After Assad conducted a massive chemical attack in the Ghouta area of Damascus in August 2013, President Obama contemplated enforcing with military action the red line he had drawn against this. He claimed “the authority to carry out this military action without specific congressional authorization.” He never articulated the legal rationale supporting that claim.
Given last night’s actions, it is now incumbent upon the executive branch to do so. One thing is for sure, it cannot be the case that last night’s actions are unlawful for failure to secure a declaration of war from Congress. That is not the state of the law or practice for 240 years of our constitutional history. The Congressional Research Service outlines that military force has been used abroad in well over 200 instances in our history, and of course Congress has only declared war in five conflicts.
International Law
As a matter of international law, the President said Syria “violated its obligations under the Chemical Weapons Convention, and ignored the urging of the U.N. Security Council.”
After the Ghouta attack, President Obama entered into a diplomatic initiative with Russian President Putin in which Syria would give up its chemical weapons and join the Chemical Weapons Convention. This was codified in U.N. Security Council Resolution 2118.
In that resolution, the Security Council made a variety of decisions that are legally binding on all states. In general terms, Syria was to comply with the diplomatic initiative in which it would, among other things, provide a detailed declaration of its chemical weapons stockpiles and capabilities, and destroy its “chemical weapons production and mixing/filling equipment.” The Security Council also decided that Syria will not “use” or “retain” chemical weapons.
Congress should welcome an explanation from the executive branch on how last evening’s actions to enforce these decisions comport with international law.
Congress should also consider a legislative vehicle to convey its support for the action of last night, in order to ratify it; and provide a legislative imprimatur for future similar actions should they be required.
COMPARISON TO 2013
There is interesting media analysis attempting to compare the military action last night and the military action President Obama was contemplating in 2013. This seems to be a particularly unhelpful and unproductive enterprise for two reasons. First, rather than trying to divine what President Obama was thinking in 2013, we have clear evidence of what he did (not do), and that is the far more meaningful comparison point.
Second, the state of affairs on the ground is entirely different today as compared to 2013, and it gets at the bromide “there is no military solution to the situation in Syria.” On quite the contrary, Russia has basically imposed a military solution in Syria.
In 2013, Assad was in a far weaker position than he is today, and the moderate opposition forces had not been as decimated as they are today. When Russia saw that its client Assad was in trouble, it militarily intervened to degrade his opposition, thereby propping him up and strengthening his position. President Obama’s CIA Director John Brennan testified to the Senate Intelligence Committee in June of last year that Assad “is in a stronger position that he was” as compared to the year before precisely “as a result of the Russian military intervention.”
When Senators are asked to compare their position on last night’s military strikes with their position on the matter in 2013, so much has changed in the geopolitical environment in four years as to make the comparison essentially meaningless.
CONCLUSION
The United States has an interest in maintaining and strengthening the norm against the use of chemical weapons. Prior to last night, it had fallen into significant disrepair, as Assad’s routine and repeated use of chemical weapons essentially went unchallenged.
The one diplomatic challenge to it came in the form of U.N. Security Council Resolution 2118, which codified a deal Russia brokered with Assad and the United States for Assad to give up his chemical weapons. As the Secretary of State said last night, “Russia has failed in its responsibility to deliver on that commitment from 2013. So Russia has been either complicit or Russia has been simply incompetent in its ability to deliver on its end of that agreement.”
On the day that Resolution passed in 2013, then-Secretary of State Kerry said if Assad failed to uphold his commitments under it, “there will be consequences.” Assad has failed to live up to his commitments for many years, and the consequences for it finally came last night.
Congress has a clear role in deciding whether to support last night’s actions, and provide domestic support for any similar military action that may be required in the future.
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