When Institutions Fail: A Thought Experiment

[Editors’ NoteThe following post is the second installment of a new feature, “Monday Reflections,” in which a different Just Security editor will take a longer view each Monday through a look back at the big stories from the previous week and/or a look ahead to key developments on the horizon.]

Is it ever appropriate for the United States to take unilateral military action to defend its vital national security interests when those public institutions that are designed to authorize the use of force are not working?

Consider the following perspective (it is not necessarily my own point of view, but I have written it below in the most persuasive form I know how).

Many argue that US airstrikes in Syria to combat ISIL are not permitted under the international legal system—at least not without UN Security Council authorization. The Security Council’s approval would not be required if military action were necessary to stop a truly imminent attack or to respond to an attack against the United States. But even in those situations of self-defense, the Obama administration must at least report to the Security Council explaining its actions.

[Collective self-defense of Iraq would provide a stronger basis under international law. But that justification would presumably also depend on the “unwilling or unable test,” which remains controversial in the international legal community. Also the administration has not relied on (or disavowed) collective self-defense for potential strikes in Syria—which may be due to independent policy constraints.]

What can be done (lawfully) about the vital U.S. national security threat posed by ISIL which is not imminent, but is mounting—and if every day delayed will make the eventual confrontation with ISIL much more bloody and more difficult to win. As ISIL weaves its way across national borders on a genocidal campaign, it is not difficult to see the analogy to the march of the German fascist army. And, indeed, the international legal system was designed to permit military action to stop such threats—assuming of course one thing: that the Security Council is working.

But the Security Council isn’t. Political actors, especially some with veto power, have enough control over the institution such that it is now fundamentally unable to perform its proper functions. That fact has become apparent over the past few years, as the White House has been blocked repeatedly in pursuing efforts that would promote global and US security. The President has to contend with political leaders who will even exercise their veto power when they think the specific case merits action. The problem is that they are interested in a larger goal of stymying the White House. And, on their view, the greater public good is served by undermining the President of the United States regardless of the merits of the instant case. In their view, they too are serving the greater public good. Remarkably, other national leaders would generally support the Obama administration in confronting ISIL but approving military force inside Syria may not sit well with their own constituencies. They’d prefer to wait until the military effort is already underway and see if it’s succeeding. Not exactly what the architects of the Security Council had in mind.

For whatever the exact reasons, the Security Council is simply not working. If it were a financial enterprise, it might be considered bankrupt. The President would be foolish to hang vital US national security interests on its approval.

One path chosen by prior administrations was to exaggerate the national security threat to try to compel the Security Council to authorize force (think: Iraq 2002). This President, to his credit, has not chosen that option.

The best path forward for the Obama administration: go it alone and articulate a legal rationale that US airstrikes in Syria are permitted even if it approaches sophistry to stretch existing legal instruments and doctrines. That will at least preserve some integrity to the international legal system. And it will provide leverage to help the very institutions to start working again: signaling to members of the Security Council that the administration has the authority to conduct the airstrikes with or without their vote of approval in the coming weeks and months.

This is admittedly a dangerous game.

First, such artificial legal rationales might not be as much of a blow to the system as the President saying he can act alone. But at some point a wholly unconvincing reading of existing legal authorities approximates the same thing as saying the foundational legal rules do not constrain the President of the United States in using military force.

Second, even if the administration eventually receives the proper authorization from the Security Council—or at least some action from the Security Council that might be more reasonably construed as authorization—he will have still done major damage to the international legal system by setting a dangerous precedent for unilateral and unauthorized military action.

 * * *

Now, let’s check your intuitions. In the above text, you can replace every instance of the word “Security Council” with “Congress” and every instance of the words “international legal system” with “American legal system.” For ease of reference, I have reproduced the text below with those substitutions.

What then makes the way you think about these cases different? What makes them the same?

Would it ever be appropriate for the White House to sidestep the Congress/Security Council, if that body is unable to serve the purpose for which it was designed? Is the best answer a sliding-scale: after a certain threshold of disrepair, the more dysfunctional the Congress/Security Council, the more freedom of action we should allow the White House? As David Pozen has written, “Dysfunction yields discretion.” Should it?

Lastly, what about the comparison between the international and domestic planes? Is sidestepping the Security Council more compelling because the President should be beholden to other fellow democratic institutions, but not to the anti-democratic likes of Putin? On the other hand, perhaps sidestepping the Congress is more compelling because that institution is more clearly failing its purpose of regard for the general public interest, while the Security Council was designed with the understanding that states operate according to highly divergent interests and no deeper commitment to one another.

As a Monday Reflection, I was inspired to consider this line of analysis by two excellent posts at Just Security last week, which addressed similar strategic political and legal calculations on the domestic plane—Marty Lederman’s “Tentative first reactions to the 2001 AUMF theory [updated]” and Shalev Roisman’s “A Response to Bruce Ackerman’s NYT Op-Ed on the President’s War Powers.”

Here follows the same text as above, with the substitutions included:

Many argue that US airstrikes in Syria to combat ISIL are not permitted under the American legal system—at least not without Congressional authorization. Congress’s approval would not be required if military action were necessary to stop a truly imminent attack or to respond to an attack against the United States. But even in those situations of self-defense, the Obama administration must at least report to Congress explaining its actions.

[Collective self-defense of Iraq would provide a stronger basis under international law. But that justification would presumably also depend on the “unwilling or unable test,” which remains controversial in the international legal community. Also the administration has not relied on (or disavowed) collective self-defense for potential strikes in Syria—which may be due to independent policy constraints.]

What can be done (lawfully) about the vital U.S. national security threat posed by ISIL which is not imminent, but is mounting—and if every day delayed will make the eventual confrontation with ISIL much more bloody and more difficult to win. As ISIL weaves its way across national borders on a genocidal campaign, it is not difficult to see the analogy to the march of the German fascist army. And, indeed, the American legal system was designed to permit military action to stop such threats—assuming of course one thing: that Congress is working.

But Congress isn’t. Political actors, especially some with veto power, have enough control over the institution such that it is now fundamentally unable to perform its proper functions. That fact has become apparent over the past few years, as the White House has been blocked repeatedly in pursuing efforts that would promote global and US security. The President has to contend with political leaders who will even exercise their veto power when they think the specific case merits action. The problem is that they are interested in a larger goal of stymying the White House. And, on their view, the greater public good is served by undermining the President of the United States regardless of the merits of the instant case. In their view, they too are serving the greater public good. Remarkably, other national leaders would generally support the Obama administration in confronting ISIL but approving military force inside Syria may not sit well with their own constituencies. They’d prefer to wait until the military effort is already underway and see if it’s succeeding. Not exactly what the architects of the Congress had in mind.

For whatever the exact reasons, the Congress is simply not working. If it were a financial enterprise, it might be considered bankrupt. The President would be foolish to hang vital US national security interests on its approval.

One path chosen by prior administrations was to exaggerate the national security threat to try to compel Congress to authorize force (think: Iraq 2002). This President, to his credit, has not chosen that option.

The best path forward for the Obama administration: go it alone and articulate a legal rationale that US airstrikes in Syria are permitted even if it approaches sophistry to stretch existing legal instruments and doctrines. That will at least preserve some integrity to the American legal system. And it will provide leverage to help the very institutions to start working again: signaling to members of Congress that the administration has the authority to conduct the airstrikes with or without their vote of approval in the coming weeks and months.

This is admittedly a dangerous game.

First, such artificial legal rationales might not be as much of a blow to the system as the President saying he can act alone. But at some point a wholly unconvincing reading of existing legal authorities approximates the same thing as saying the foundational legal rules do not constrain the President of the United States in using military force.

Second, even if the administration eventually receives the proper authorization from Congress—or at least some action from Congress that might be more reasonably construed as authorization—he will have still done major damage to the American legal system by setting a dangerous precedent for unilateral and unauthorized military action.

 

About the Author(s)

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016). You can follow him on Twitter @rgoodlaw.