Parliament and Congress Have No Power to Legalize War

Congress has fled town to avoid voting for or against a new war. Many of the big donors to Congressional campaigns would want Yes votes. Many voters would want No votes, if not immediately, then as soon as the panic induced by the beheading videos wears off, which could be within the next month. Better to just avoid displeasing anyone -- other than people who notice you running away.

The standard for legal-ish cosmopolitan respectability in the U.S. now has become getting five kings and dictators to say their on your side as you start bombing a new country.

But the British Parliament is still at the level of believing an actual vote by a legislature is appropriate.  Do Americans remember that their beloved founding fathers put war powers in the hands of the legislature because of the ugly history of royal wars in Britain? Times have changed.

But if we want to actually comply with the law, we have to admit that neither Parliament nor Congress has the power to legalize attacking Syria. This is because both the U.S. and the U.K. are parties to the United Nations Charter, which bans war with very narrow exceptions -- exceptions that have not been in any way met.

And if you want to get really serious about laws, the Kellogg-Briand Pact has never been repealed, the U.S. and U.K. are parties to it, and it bans all war without exception.

Now, you can interpret the Kellogg-Briand Pact to allow self-defense because the right to military self-defense, even when it's unlikely to actually work, is just so obvious to your way of thinking. And the U.N. Charter explicitly allows military self-defense. But here's the problem: There's nothing defensive about attacking Syria, and President Obama himself described it as "offense" in an interview with Chuck Todd on NBC.

Another word for "offense" is aggression, which the Nuremberg tribunal called "essentially an evil thing . . .  the supreme international crime, differing only from other war crimes in that it contains within itself the accumulated evil of the whole."

Asked about Congress's responsibilities on Tuesday, Senator Tim Kaine (D., Va.) claimed that presidents could fight defensive wars without Congress but needed Congressional authorizations for offensive ones.  In fact, offensive wars are not legal by any common understanding. Asked, then, about international law, at an event at the Center for American Progress, Kaine reportedly said that bombing Syria, as distinct from Iraq, was "complicated" and that he was not sure "how they would do that, perhaps using principles of self-defense or defending Iraq against other threats. I think we'll find out more about what the administration says about that after the UN General Assembly," he said.

Only in America. Only the White House gets to invent legal rationale for blatant crimes, with the law makers and enforcers prepared to accept the rationale before they hear it.

Prior to the U.N. meeting, U.S. Ambassador Samantha Power wrote to the U.N. arguing that it is legal for the United States to attack Syria because it is legal for Iraq to defend itself. By this logic, if Canada experienced a violent rebellion, it would be legal for China to attack the United States.

It's fun to pretend that the rule of law doesn't matter to you because you have all the weapons. It's fun to take two-month vacations from Washington. Just don't count on everyone voting you back next year.