Let’s Cross-Examine Obama About His Case for Bombing Syria

by BRIAN J. FOLEY

President Obama’s proposal to use military force against Syria, because its government allegedly used chemical weapons against rebels, reveals once again the need for some sort of process to test government claims for war.

Right now, the decision is left to politics and posturing instead of to law, principle, and reason. The recent hearings in the Senate Foreign Relations Committee revealed that. The upcoming Congressional “debate” undoubtedly will make the point more starkly.

The decision to use military force is the most serious decision a government can make – especially when that government wields the most powerful killing machine in history. Innocent people will die. Others will be injured, physically and psychologically. Many will have their homes and belongings destroyed, become refugees, and lose friends and loved ones. Further conflict could erupt, drawing in other nations. Economies and markets could be disrupted. The environment could be harmed.

On the home front, civil rights will get choked once again. Money that could be used productively will get funneled to weapons makers and mercenaries.

Politicians and pundits rarely ask the right questions, among which are: Is force necessary? What are the alternatives? What are the likely harms of using force, and how can these be limited? Are the harms worth it?

It’s astonishing that there’s no formal process to ask these questions. There’s actually more process applied to test government claims in criminal courts across the country every day than is applied to test government claims concerning the most serious action a government can ever take. There is more process to test whether a restaurant should receive a liquor license than to test whether a nation should wage war.

This is particularly astonishing given how many times the world has been burned by rationales for war that later turned out to be false. The Gulf of Tonkin and Saddam’s WMD come to mind.

The legal and moral tools to create such a process have long existed. The UN Charter, in Chapter VII, prohibits nations from using military force except in self-defense and requires that such decisions be made by the Security Council: military force can be used only by consensus and only when necessary. The venerable Just War standard limits a nation’s using military force to cases where there is proper governmental authority, proper intention, reasonable hope of success, proportionality, and when war is the last resort – i.e., that nonviolent measures have been proved or would be futile.

The burden of proof should be at least the legal standard “clear and convincing evidence.” Better yet, with preemptive wars and other wars of choice, given the enormous downsides and dangers of error, the highest legal standard, the standard used in criminal cases should be applied: “beyond a reasonable doubt.” Anyone proposing to unleash the destruction and havoc of war should be forced to meet the highest standard to show that war is justified and that no reasonable alternatives exist.

But questions such as I’ve posed above aren’t asked at the UN or in Congress or even in our mainstream media. The idea that the government should have the burden of proof seems missing in action – did the Bush Administration ever really explain why there weren’t feasible alternatives to full-scale invasion to prevent Saddam Hussein from using WMD? (Or, for that matter, did the administration ever explain why an invasion wouldn’t simply cause Saddam to use the weapons if he had them?) Instead, we get platitudes, shoddy thinking, and flag-waving.

For example, President Obama says that using military force is “the right thing to do” in Syria. Why not ask President Obama if causing all of the above-listed harms is the “right thing” to keep another country’s president from using chemical weapons against his own people? (Bombs, tanks, and tear gas are OK, by the way.) Why not use legal process and indict and try (perhaps in absentia) Syrian’s president in the International Criminal Court or another tribunal? President Obama’s plan is like blowing up an entire neighborhood because one man living there beat his kids.

The good news is that there is widespread opposition to President Obama’s proposal. The time is ripe to build on this momentum and create a process to test the claims.

Here’s how it could work.

The UN

The Security Council could implement such a process to test claims rather than bowing out when there’s a veto or threat of veto. The U.S. claims should be tested in the Security Council this week. Why not bring President Obama (or one of his highest-ranking aides) in and cross-examine him? Perhaps that seems radical in the diplomatic world, where leaders are given enormous deference (isn’t the age of Kings over?), but keep in mind that President Obama wants to to pull the trigger and extinguish perhaps thousands of lives and wreak havoc across the Middle East and even beyond.

In recent years there has been worry about nations bent on war “bypassing” the Security Council, which makes the Security Council appear impotent and threatens its legitimacy, such as in 1999 when NATO bombed the former Yugoslavia for 78 days, or in 2003 when the US and a coalition invaded and occupied Iraq, without authorization from the Security Council. But the Security Council should engage in such a process even if it is bypassed or a veto is threatened. That would increase its legitimacy.

For example, in 2003, had the Security Council exposed US claims for war as wrongheaded and supported only by shaky and even fraudulent evidence (such as the forged documents used to allege that Iraq sought uranium from Niger), the Security Council would have shown itself to be tough-minded and correct in not approving the US-led invasion. Publicly destroying the US case for war also might have caused people in other nations to pressure their governments not to join the US-led invasion. It’s one thing for people to say they oppose a war, or that it’s not a good idea. It’s far more powerful for them to be able to point to a process that exposed the claims for war as unsupported or even patently false.

If President Obama spurns the Security Council’s invitation to make his case, his claims should be tested anyway. The Security Council should pick them apart. The Security Council should assign someone to make the arguments the U.S. has made, and see if they meet the high burden.

Congress

Instead of bringing us speeches by empty suits, why doesn’t Congress invite President Obama to come make the case for war? And subject him to cross-examination? Why doesn’t Congress engage in a meaningful search for alternatives to war? Again, it’s a grave decision that deserves the full application of critical and creative thinking. Politicians afraid of looking “weak” by questioning a proposed military action can frame their questioning as “protecting the troops.” Where attacks are to be made by drones, these politicians frame their inquiry as about “costs” (“fiscal conservatives” take note) and “preventing terrorist blowback.” Politicians could also improve their standing by showing wisdom and creativity.

Other Nations

Any of the world’s 200 or so countries could set up such a process to test whether another nation’s claims for war are justified. This should be the case especially when a country is deciding whether to join a war.

Civil Society

If government officials fail to act, NGOs or civil society groups could set up such a process. US politicians would undoubtedly ignore any invitation, but their arguments could be made and tested. The hearings could be streamed on the Internet, and summaries and highlights could be made available and spread widely.

Time is short. We should demand that the world- and national government bodies to the right thing and treat claims for war as dangerous and deadly proposals.

Brian J. Foley is a law professor and author. Email him at brianjfoleyinc@gmail.com For links to other work by him on this issue, visit Lawpaganda

Brian J. Foley, Inc. is a separate entity from Brian J. Foley, who created Brian J. Foley, Inc. after the United Supreme Court’s decision in Citizens United v. Federal Election Commission (2010), so he’d have more rights than you. brianjfoleyinc@gmail.com

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