Are U.S. Airstrikes In Syria Legal?
RACHEL MARTIN, HOST:
The Obama administration's stepped up fight against the group that calls itself the Islamic State raises new questions about the legality of that fight. This week the U.S. and five Arab countries launched airstrikes on the Islamic State in Syria. U.S. fighter jets and unmanned drones had already been carrying out strikes on the group in Iraq. Noah Feldman is a Harvard law professor. He wrote a piece in Bloomberg View arguing that the administration has offered no credible legal authorization for a war against the Islamic State. We reached Feldman to talk more about this. Welcome to the program.
NOAH FELDMAN: Thank you for having me.
MARTIN: The Obama administration says these strikes are legal under something called the AUMF - this is the Authorization for the Use of Military Force - that was passed after 9/11. You disagree, why?
FELDMAN: The post-9/11 authorization was for us to go to war with al-Qaida or affiliated forces. The Islamic State is not an affiliated force of al-Qaida and, in fact, the Islamic State it is at war with an al-Qaida affiliate in Syria. And it would be a mistake to interpret that initial authorization as simply saying if someone is a jihadist and we don't like them then the president is authorized to make war on them. That's a bit too close to the old, refuted idea that the United States is involved in a global war against radical Islam; we're not as a legal matter, and we shouldn't be as a practical matter either.
MARTIN: But no one seems to be making a big deal of this. The Secretary-General of the U.N. has called ISIS a grave threat, and no one but Iran - no nation state but Iran - seems to be calling into question the legality of the strikes.
FELDMAN: That's true. There seems to be a kind of recognition that the Islamic State, which has no significant national allies, is a rogue actor. And therefore, people are more or less willing turn a blind eye to the apparent absence of legal justification for this action. Now, that does make you ask, quite reasonably, who cares about international law? Should it matter at all? And the answer is international law never matters until it matters. You know, it's not until somebody like Vladimir Putin is in the process of trying to carve away a part of Ukraine that suddenly the question of national sovereignty enters people's concerns. And they suddenly say, wait a minute, what Putin is doing is violating international law. So when we violate international law - when we don't get U.N. authorization for interventions like this - we do so at our peril because we create precedents by which bad actors can subsequently appear and say, well, you thought this was fine, and so what we're doing - our intervention - is fine too.
MARTIN: Getting back to domestic law, President Obama himself has called for the repeal of the AUMF, that legislation passed after 9/11. Now the administration, as you point out, is relying on it to justify these strikes. What kind of precedent does that set, especially as more al-Qaida splinter groups - inspired or closely aligned with al-Qaida - start to materialize?
FELDMAN: Primarily, I would say it's a political embarrassment to the administration that not one but two authorizations that it's seeking to repeal - the post-9/11 authorization and the Iraq authorization - are now suddenly being relied upon. The message is that, in fact, what we need are new authorizations enforced by Congress that are specific to the new kinds of conflicts that we are facing. That's the core question here. The core question is what does the public believe? And after all, that's why the Constitution brings Congress into this process at all.
MARTIN: But it seems Congress is opting out of this debate completely.
FELDMAN: That, I think, is actually by far the most upsetting precedent at all that's being created in this entire process. Congress seems to be winking at the president and especially many Democrats, saying, go ahead and do this, but we don't want to put it in front of the public. And we don't want to vote on it with the midterm elections coming because we believe that it's probable that our actions would be unpopular. So if Congress docks its responsibility to weigh in and actually take a stand on whether the use of force should be undertaken in a serious and extended way, then our constitutional design, in which the public is supposed to play an important role in the decision to go to war, is deeply, deeply undermined. And that's very dangerous for the country in the long run.
MARTIN: What kind of questions does this whole thing raise about the nature of war now? I mean, does it get down to how we define war in an age where the United States or another country doesn't necessarily have to put boots on the ground to launch an attack; it can be done from a distance?
FELDMAN: To my mind, it's extremely important to acknowledge that just because we are using airplanes or drones or even cyber-attacks, it's still war. People are still being injured and are dying on the ground. They still experience themselves as being attacked, and the repercussions for our country are just as important and significant as they would be if we had our soldiers in harm’s way. I think it's very tempting to imagine, and sometimes I worry that the administration even believes this, that if you're bombing from the air or if you're doing in a humanitarian project, that that doesn't count as a war. And therefore, that the president can act on his own without authorization from Congress and without involving the public - that seems to me quite wrong. The real-world consequences of war are the same if they are from the air as they are from the ground, especially for the people who are being attacked.
MARTIN: Noah Feldman is a professor of international law at Harvard. His latest Bloomberg View column is titled "Obama Doesn't Want Your Approval For War." Thanks so much for talking with us.
FELDMAN: Thank you very much for having me.
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