The mis­siles of Holy Week and the rule of law

Trump’s at­tack on Syria was both emo­tional and il­le­gal

The Washington Times Daily - - OPINION - By An­drew P. Napoli­tano

The his­tory of the world is the his­tory of vi­o­lence. I had planned to write this col­umn about the most crit­i­cal act of vi­o­lence in hu­man his­tory and its su­per­hu­man af­ter­math — the cru­ci­fix­ion and res­ur­rec­tion of Je­sus Christ. Easter, which cel­e­brates His res­ur­rec­tion in a few days, is the cen­ter­piece of all Chris­tian be­lief. With­out the risen Christ, we are doomed. Only with Him can we be saved. An old Ir­ish priest told me in my youth that Easter means there is hope for the dead. And if there is hope for the dead, there is hope for the liv­ing.

But the liv­ing must do more than just hope, be­cause gov­ern­ments con­tinue to crush hope with vi­o­lence, ir­re­spec­tive of moral and le­gal norms. Last week, as Holy Week was ap­proach­ing, the United States launched 59 cruise mis­siles at a Syr­ian air­field be­cause Pres­i­dent Trump was morally re­pulsed at the use of poi­son gas in Syria in the days pre­ced­ing.

Mr. Trump ar­gued that the gas could only have been de­ployed in­ten­tion­ally by the Syr­ian gov­ern­ment on its own peo­ple and that that be­hav­ior was so re­pel­lant, so con­trary to civ­i­lized moral norms, so dis­rup­tive to the world or­der as to con­sti­tute a na­tional se­cu­rity threat to the United States — hence his use of force. Was his ac­tion le­gal? Here is the back story.

Syria, along with the United States, is a sig­na­tory to the United Na­tions Char­ter. The U.N. Char­ter is a treaty signed by Pres­i­dent Harry Tru­man and rat­i­fied by the U.S. Se­nate. Un­der the Constitution, treaties are the supreme law of the land, along­side the Constitution, and the fed­eral gov­ern­ment has a moral and le­gal obli­ga­tion to be bound by them. The U.N. Char­ter lim­its mem­ber na­tions’ use of mil­i­tary force to de­fen­sive re­sponses to ac­tual at­tacks, pre-emp­tive strikes prior to nearly cer­tain at­tacks and cor­rec­tives pur­suant to U.N. con­sent or pur­suant to an­other treaty obli­gat­ing mil­i­tary force to help an ally.

These lim­i­ta­tions are based on JudeoChris­tian just war the­ory, which has been ac­cepted in the Western world for cen­turies and is now cod­i­fied into in­ter­na­tional law. Un­der this in­ter­na­tional law, mil­i­tary force must be a last re­sort, used only when nec­es­sary to fight back or to pre­vent an im­mi­nent at­tack. It also must be pro­por­tional to the harm it seeks to erad­i­cate and be likely to pro­duce the re­sult it seeks. Any­thing short of this vi­o­lates in­ter­na­tional law, to which the U.S. is bound by nu­mer­ous treaties.

Syria is not a threat to the U.S., nor is it likely to be­come one. Nor is the ar­gu­ment that we needed to send a mes­sage to Syria lest it use poi­son gas on the U.S. a valid le­gal ar­gu­ment or a re­al­is­tic po­lit­i­cal one. Were this sub­jec­tive fear a valid le­gal ba­sis for the use of mil­i­tary force, the pres­i­dent could send mis­siles any­time and any­where at any­one or any­thing with le­gal im­punity.

The pres­i­dent’s re­vul­sion at the sight of chil­dren suf­fer­ing hor­rif­i­cally from the ef­fects of poi­son gas is an emo­tional re­ac­tion — a very hu­man and ut­terly nor­mal one. Yet it in no way legally jus­ti­fies an at­tack on a sovereign na­tion.

In ad­di­tion to var­i­ous treaties, the pres­i­dent is sub­ject, of course, to the Constitution, which pro­vides that only Congress can de­clare war. Yet Congress gave the pres­i­dent a small win­dow in which to use mil­i­tary force on his own in the War Pow­ers Res­o­lu­tion of 1973. That law was writ­ten in the midst of Pres­i­dent Richard Nixon’s un­de­clared war in Cam­bo­dia to limit the pres­i­dent’s emer­gency use of mil­i­tary force ab­sent a dec­la­ra­tion of war from Congress to de­fen­sive strikes, pre­emp­tive strikes and treaty obli­ga­tions.

Ear­lier this week, 21 re­tired mil­i­tary, in­tel­li­gence and FBI per­son­nel jointly ar­gued that Pres­i­dent Trump was moved to this at­tack by mis­guided or in­com­plete in­tel­li­gence. Their view — which is based on eye­wit­ness re­ports from U.S. mil­i­tary on the ground in Syria and in­tel­li­gence re­ports from their for­mer col­leagues — is that Syr­ian Pres­i­dent Bashar As­sad did not use poi­son gas on his own peo­ple ear­lier this month. They note that Mr. As­sad is clearly win­ning his long-fought civil war and does not need the in­ter­na­tional headache of be­ing tar­nished as a per­son who gassed chil­dren; nor would there be even the re­motest mil­i­tary gain to him if he did so.

These for­mer fed­eral of­fi­cials point out that the U.S. mil­i­tary is play­ing a sub-rosa role with Rus­sia and Syria in fight­ing al Qaeda and the Is­lamic State group. In this case, Syr­ian and prob­a­bly Rus­sian mil­i­tary er­ro­neously thought a ware­house the Syr­i­ans at­tacked stored only con­ven­tional Is­lamic State weapons. It ap­par­ently stored an Is­lamic State chem­i­cal ar­se­nal, as well, which, af­ter ex­plo­sions and ex­po­sure, un­leashed a plume of poi­sonous gas that trav­eled in the at­mos­phere to a nearby vil­lage and slaugh­tered in­no­cents.

Mr. As­sad, for all his faults, is vig­or­ously fight­ing al Qaeda and the Is­lamic State. The en­emy of my en­emy is my friend. Why would Amer­ica harm an­other sovereign en­tity that is try­ing to take out al Qaeda and the Is­lamic State? At­tack­ing Syr­ian mil­i­tary as­sets only aids al Qaeda and the Is­lamic State, which con­sti­tutes pro­vid­ing ma­te­rial as­sis­tance to ter­ror­ist or­ga­ni­za­tions. Could any­one have imag­ined our coun­try’s ever do­ing that?

For months, I have been warn­ing about the unchecked power of the in­tel­li­gence com­mu­nity to ma­nip­u­late the pres­i­dent by se­lec­tively re­veal­ing and se­lec­tively con­ceal­ing what it knows about our en­e­mies and our friends. Did Mr. Trump have all the in­tel­li­gence he needed in front of him be­fore he at­tacked Syria? Ap­par­ently not. Did he use pro­por­tional force de­fen­sively or pre-emp­tively to pre­vent harm to the U.S.? Clearly not. Can he legally use mil­i­tary force to pun­ish or to teach a les­son to an­other sovereign state that poses no threat to the U.S.? Ab­so­lutely not, or there will be no end to gov­ern­ment vi­o­lence.

Yet in this time of vi­o­lent mad­ness, there is the joy of the Res­ur­rec­tion. Happy Easter. An­drew P. Napoli­tano, a for­mer judge of the Su­pe­rior Court of New Jer­sey, is a con­trib­u­tor to The Washington Times. He is the au­thor of seven books on the U.S. Constitution.

Were this sub­jec­tive fear a valid le­gal ba­sis for the use of mil­i­tary force, the pres­i­dent could send mis­siles any­time and any­where at any­one or any­thing with le­gal im­punity.

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