The overwhelming approval by both chambers of the US Congress of a bill imposing new, permanent sanctions on Russia, Iran, and North Korea puts President Donald Trump in an impossible position. He can either sign the bill or allow it to become law without his signature, in which case he has acquiesced in the Legislative Branch’s usurpation of what is supposed to be among the Executive’s primary constitutional responsibilities, the conduct of relations with foreign states.
Or he can veto it, but with a total of only five votes against it in both the Senate and the House together, an override is almost certain. Trump would still find his authority curtailed, on top of crippling his clout during the infancy of his term.
Keep in mind that this is being inflicted on Trump mainly by members of his own party. The Republican Congressional leadership can’t manage to repeal Obamacare, reform taxes, stop voter fraud, keep dangerous people out of our country, build the Mexican Wall, or renew our national infrastructure. But they find plenty of time to hold hands with the Democrats, who are trying to unseat the constitutionally elected president in a "soft coup" over phony "Russiagate," to enact a misguided piece of legislation that is expressly intended to guarantee that Trump can’t, under any foreseeable circumstances, improve ties with the one country in the world with which we absolutely must get along, at least on some minimal level: "It’s the Russia, Stupid!"
This is bipartisanship at its worst. In case we need to be reminded, America does not have a multiplicity of parties like most other countries. Instead, we have just two: an "Evil Party" and a "Stupid Party" – and when something is really evil and stupid, we call that "bipartisan."
To appreciate how corrosive of the rule of law this bill is, consider the status of an authority the Constitution does put firmly into the hands of Congress: the power to make war. Congress has uttered hardly a peep of protest over the decades as their most solemn trust has effectively become a dead letter. Successive presidents have conducted operations in or against dozens of countries without authorization from Congress in clear violation of international law. (In fact, during President Bill Clinton’s aggression against Serbia in 1999, Congress affirmatively voted down his request for war authority. He and lapdog NATO proceeded anyway.)
Recently the Pentagon was enraged at Turkey’s revealing the existence of at least 10 secret American bases in northern Syria. The anger was over the exposure of the bases’ existence, not the fact that they had no legal justification to be there at all, under either US domestic law or binding international law. With respect to both the military presence in Syria is lacking, but no one in Congress cares. They’re too busy clipping Trump’s wings.
Let’s keep in mind that in addition to the illegal bases, the US is busy conducting military activities in Syria under the bizarre fiction of acting pursuant to the Authorization for the Use of Military Force (AUMF) passed in September 2001 after the 9/11 attacks. Under that resolution, the President is authorized to wade war against entities that "authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001." That might conceivably be applicable to the operations of al-Qaeda in Syria, although until President Trump’s recent decision to cut off CIA arms supplies to jihadists in Syria, al-Qaeda linked groups seemed to be mostly beneficiaries of Washington’s involvement, not military targets. It can’t possibly apply to ISIS, which didn’t even exist in 2001. Even more blatantly illegal is the repeated targeting of Syrian governments forces operating on their own territory and fighting against al-Qaeda, among other terrorist groups.
With respect to international law there is no murkiness at all: US actions in Syria are flatly illegal. First, let us keep in mind that treaties and conventions, like the UN Charter, are not optional; they are binding on state parties, and in the US legal system have the same weight as federal statute. Under the Charter, which is the fundamental law of the international system, there are two – and only two – legitimate uses of military force.
First, authorization by the UN Security Council under Chapter VII "ACTION WITH RESPECT TO THREATS TO THE PEACE, BREACHES OF THE PEACE, AND ACTS OF AGGRESSION." Clearly, that justification is inapplicable, since the UNSC has authorized no US action in Syria.
Second, there is Article 51, which upholds the "inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations." Nobody in Syria has attacked us or any US treaty ally, though Turkey has occasionally flirted with invoking NATO (a collective self-defense organization subject to Article 51, which is cited in Article 5 of the North Atlantic Treaty) while itself aggressing against Syria.
On point of comparison, let’s remember the ex post facto rationales trotted out after the 1999 Kosovo war. As stated by Dr. Richard Falk, in arguing the illegality of military actions against Syria:
In the aftermath of the Kosovo NATO War of 1999 there was developed by the Independent International Commission the argument that the military attack was ‘illegal but legitimate.’ The argument made at the time was that the obstacles to a lawful use of force could not be overcome because the use of force was non-defensive and not authorized by the Security Council. The use of force was evaluated as legitimate because of compelling moral reasons (imminent threat of humanitarian catastrophe; regional European consensus; overwhelming Kosovar political consensus—except small Serbian minority) relating to self-determination; Serb record of criminality in Bosnia and Kosovo) coupled with considerations of political feasibility (NATO capabilities and political will; a clear and attainable objective—withdrawal of Serb administrative and political control—that was achieved). Such claims were also subject to harsh criticism as exhibiting double standards (why not Palestine?) and a display of what Noam Chomsky dubbed as ‘military humanism.’ None of these Kosovo elements are present in relation to Syria.But of course none of those "compelling moral reasons" were really "present" in Kosovo, either. They were lies then and remain lies today.
In any case, Trump is about to suffer a debilitating wound to his authority, care of the Republican-controlled Congress. Meanwhile the lynch mob led by Special Counsel Robert Mueller, with his unlimited budget and all-star lineup of partisan Democrat lawyers, will broaden and dig till they can find someone they can nail for something, dragging it out into the 2018 Congressional election year.
If the Republicans lose the House next year, Trump without any doubt will be impeached. And unlike Democrats, who rallied around "their" president Bill Clinton, enough GOP Senators will rush to convict Trump. He’ll have to resign or be removed. The Deep State’s soft coup will have succeeded.
As the noose tightens around Trump’s neck, there’s only one apparent way out: a splendid little war. Whether it’s against Iran or North Korea may be decided by the flip of a coin.
Reprinted with permission from the Strategic Culture Foundation.
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