Written by Winston P. Nagan   

The Congress is currently in deep consideration over the question of whether the United States should intervene with military force in the Syrian civil war. Even if there is agreement about intervention, Congress wants to know what the scale and duration will be of that intervention. Additionally, they are concerned about what its intended and unintended affects might be. The Executive has presented evidence indicating a strong possibility that the regime has deployed and used significant amounts of chemical weapons against civilian targets in Syria. It has been estimated that close to 1,500 people have been killed in chemical attacks. Some 400+ children have also been victims of the alleged attack. This expansive use of chemical weapons, long prohibited in international law, has triggered the concern of the administration that it needs to do something to send a message that would deter further use.
The President has indicated it is in the national interest that a military response be given. However, he has also indicated that this decision should be authorized by Congress. This has created a certain ambiguity about the resolve of the United States. When the President decided that he needed congressional authorization, it implied a presidential weakness to act within the sphere of presidential competence. It could also have underscored the principle of cooperative shared governing responsibility. The precise scope of congressional competence outside a formal declaration of war and in the context of the use of U.S. Armed Forces abroad is in fact a controverted matter. For example, the War Powers Resolution requires the President to consult with Congress in a timely manner when the Executive uses or intends to use coercive force abroad. The term “consultation” is ambiguous and presidential practice has tended frequently to make consultation a token and informal process. Although, some presidents have deemed the act to be unconstitutional, neither the Executive or the Legislature have been willing to judicially test the validity of the act. Politicians in the Executive Branch or Congress have legitimate differences of opinion on this matter. Executive spokesmen have indicated that the President reserves the right to act regardless of congressional authorization.
In the political process we may discern two opposing poles about foreign affairs that are in the wings. There is the long-standing dream of American isolationism. Isolationism survives, apparently insufficiently shattered by the Japanese attack of December 7, 1941 or the terrorist attacks of September 11, 2001. Senator Paul is the current champion of isolationism. He would favor a congressional veto over an Executive decision to intervene. At the other end of the spectrum are the neo cons. These are deep believers in U.S. imperial hegemony. The logical consequence of the imperial view reflected extravagant claims of Executive power and stressed the limitations of congressional control. Thus, it was that the neo cons who developed the controverted Unitary Presidential Theory of Executive Competence.
The Obama Administration has not explicitly endorsed the Unitary Presidential Theory, but they have not categorically repudiated it either. The current issue before Congress implicates an important fundamental question about the genesis of our form of government. In particular, if Congress endorses a posture of timidity, would such a posture enhance security dangers to the American people? United States timidity could be seen as an example of the unreliability of the United States as a stabilizing force in global order. Additionally, states that seek to test United States interest will find that there is space for them to act in a bolder capacity. On the other hand, if Congress expressed over confidence in the use of military force would the result be a form of endless self-sustaining and hugely expensive war? The challenge of political wisdom is to find a point that avoids the dangers of isolationism and the dangers of open ended and unlimited conflict abroad. It is well to remember, that the attack of December 7, 1941 shattered the isolationists’ dream. The Iraq War shattered the neo con dream of an American empire. There is still an important decision making challenge for both the Executive and the Legislative Branches of government, one that avoids these extremes.
It is important that a clearer picture is given for the strategy of a possible armed attack. That strategy may require a harder look at this complex conflict from a national, regional, and global perspective: to provide an adequate contextual appreciation of the challenges and to rationally weigh the advantages and deficits of action or inaction. The triggering problem is the use if chemical weapons, which are prohibited by treaty-based international law. The narrowest specific national interest of the United States, with regard to chemical weapons, is that chemical or bacteriological weapons routinely used in Syria, with no response may provide an incentive for the proliferation of such weapons. They could end up in the hands of global terrorists. However, the successful use of such weapons of mass destruction, uncontested, may be an incentive to use them to contaminate the water supplies of major American cities. In this sense, they are more dangerous than nuclear weapons. So long as there are global terrorist mafias these weapons could be used against us. It is therefore in our national interest to be strong and vigilant and be seen to lead on this issue. A military attack of some sort clearly sends a message of deterrence. Senator Paul’s isolationism is dangerous.
In the global context, it is important that we clarify the legal basis for intervention using the strongest possible argument. President Obama has apparently opted for what we deem to be a weaker argument. He would justify intervention because of a violation of the chemical and bacteriological weapons treaty. However, the treaty does not make provision, as such, for unilateral intervention. It implies that the matter is one of collective security vested with the Security Council. With the Russian veto the treaty doesn’t help much. We can read into the treaty the notion that the use of chemical weapons implicates war crimes jurisdiction. But this would not be sufficient to justify an armed attack. The strongest legal basis is to read into the treaty that its major purpose is to protect humanitarian values in the law of war. The case to intervene in Syria, based on the historic principles of humanitarian intervention, could absorb weapons of mass destruction as well. And these principles could be read in conjunction with Article 55 (c) and Article 56 of the UN Charter. This would seem to us to provide a valid legal basis under international law to justify U.S. intervention. Mr. Putin has sought to resurrect the notion of sovereign absolutism in international law. We should be warned that sovereign absolutism destroyed the League of Nations and was partly the cause of WWII. The UN does vest collective security in the Security Council. But matters of international concern in which the Council cannot act are not as such prohibited. There are two examples. First, the United for Peace Resolution was a resolution that permitted action when the Security Council was blocked. Humanitarian intervention remains a second exception reinforced by Articles 55 and 56 of the UN Charter. Putin’s sovereign absolutism is dangerous and is itself a threat to international peace and security.
The next question that must be considered is the strategic objectives that intervention seeks to secure. This is a matter that requires more thought. For example, a token attack of Syria could serve to harden the resolve of the regime. A more strategically developed form of intervention might serve as an incentive to Syria to be more enthused about the possibilities of diplomacy rather than an iron fist solution to the problem. For example, broader U.S. objectives and strategic targeting could be: 1) degrade command and control, 2) degrade missile-launching capability, 3) degrade the air force. Such a strategy, joined with public diplomacy, could serve to reinforce the idea that a solution to the Syrian problem is not continued conflict but diplomacy. This is a strategy designed to level the field of conflict.
A simultaneous initiative should be made with the Syrian opposition. The first incentive here, apart from the degrading of the regime’s assets, is to provide sufficient arms and training subject to the condition that the international terrorist within their ranks are marginalized and precluded. The objective here is to work towards a level playing field in which there is an incentive to join the diplomatic process.
This conflict is taking place in the Middle East. There have been significant changes in the regional position of regional powers. A diplomatic solution would have to navigate the complexity of these changes. The most significant component of change is the fact that the region now represents two distinct axes of power. First, there is the emergence of Shiite power. The strongest of these powers is Iran. However, Shiite power extends through Iraq, Syria and part of Lebanon. The Assad regime is essentially protecting not only its totalitarian style, but its minority Alawite population, the Alawites are largely Shiite. The regime with its Alawite base has been repressing the Sunni majority. There is no question that should the regime lose there will be a real fear that the Alawites will be extinguished. Therefore, both the Shiites of Lebanon and Iran are supporting the regime. The other axis consists of Saudi Arabia, the United Arab Emirates, Jordan and the rest of Lebanon. These are Sunnis and they are fully supporting the Sunni majority of Syria. In each instance, the differences between Shiites and Sunnis seem to be matters that provoke violent responses.
As a prelude to diplomacy, it would be important that an initiative be made to the dominant Sunni/Shiite powers in the region that the historical differences between these branches of Islam be settled by debate among Islamic scholars and jurists. This could be followed by each side issuing a fatwa indicating that violence, murder, and terrorism, for the resolution of the ancient conflict between Sunni and Shiite, are forbidden. Such a fatwa would be quite consistent with the five pillars of Islam. The first pillar (Shahadah) stipulates that there is no God but Allah. Clearly, both sides agree to this. The second pillar (Salah) reinforces the idea of piety and constant prayer. A matter shared by both sides. The third pillar (Zakat) recognizes the concern of all Muslims for kindness and generosity. The fourth pillar (Sawm) reflects on the notion of sacrifice in the form of fasting. The fifth pillar (Hajj) refers to the pilgrimage to the holy sites. Whatever the differences are between the two main branches of Islam, it is quite clear that they share a common interest in the five pillars of Islam and this should serve as the basis for both sides prohibiting violence and killing between the two groups. This could be a useful prelude to diplomatic negotiations moving forward constructively against the background of regional interests. The election of a moderate president in Iran might be an opportunity to invest Iranian interests with moderation. Iran’s new president would have to persuade the religious elite in Iran on this. The other main Sunni influence is Saudi Arabia. The Saudi king will have to use his authority to persuade the Wahabi fanatics to forego violence against others. This may be a difficult stretch, but it is not impossible.