So You Want to Intervene in Syria Without Breaking the Law?

Good luck with that.

So let's say you're the president of the United States and you want to use military force to intervene in Syria. I'm not saying you do (it sorta looks like you don't), and I'm not even saying you should (you're not wrong to worry that military intervention might not end well).

But let's say you become convinced that military intervention is the only way to protect Syrian civilians from being slaughtered by government forces, or that it's the only way to prevent Iran and Hezbollah from becoming dangerously emboldened, or the only way to prevent factions with links to al Qaeda from gaining the upper hand within the Syrian rebel movement, or the only way to prevent the conflict from spilling over into neighboring countries, or the only way to do all those things. And let's say that Russia continues to block every U.N. Security Council resolution that might pave the way for a civilian-protection intervention á la Libya.

You're a president who respects international law -- or, at any rate, you're not inclined to thumb your nose openly at international law. You're not Dick Cheney, and you don't like being compared to Dick Cheney. That means that if you decide America should intervene militarily in Syria, you want to be able to tell the world, with a straight face, that the intervention is legal. At a bare minimum, you want to at least feel confident that what you're doing isn't blatantly, manifestly, obnoxiously illegal, in a "F*** the U.N. Security Council and the horse it rode in on" kind of way.

Can you do it? Would it be lawful, as an international law matter, for the United States to use military force in Syria without a Security Council resolution authorizing the intervention?

The short answer: Probably not.

But that's not quite the end of the story. For advocates of military intervention in Syria, the longer answer's a little less definitive, and offers somewhat greater wiggle room.

Start with a primer on the international law governing the use of force. In theory, it's pretty clear. The U.N. Charter embraces the principle of "sovereign equality" and requires that member states "settle their international disputes in a peaceful manner" and "refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state." That's generally viewed as a blanket prohibition on the use of force inside the borders of another sovereign state.

Chapter VII of the U.N. Charter outlines just two exceptions to this prohibition: First, if the Security Council identifies "any threat to the peace, breach of the peace, or act of aggression," it may "take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security." For practical purposes (since the United Nations never got the standing army envisioned by its charter), this means the Security Council can pass a resolution authorizing member states to use force to carry out its mandates. In the context of Syria, the likelihood that the Security Council will pass a resolution authorizing the use of force is approximately the same as the likelihood that Vladimir Putin will defect to the United States.

The second exception to the prohibition on the use of force relates to self-defense: In Article 51, the charter says, "Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security."

Here again, this doesn't offer much to advocates of U.S. intervention in Syria: Syria hasn't staged any armed attacks against the United States, and it seems most unlikely to do so in the foreseeable future. Syrian President Bashar al-Assad may be a vicious autocrat, but he's plenty smart enough to refrain from giving Washington a good excuse to intervene.

There's one other implied exception to the prohibition on using force inside a sovereign state: By definition, it's not a violation of sovereignty if a state consents to another state's use of force inside its borders. But this still doesn't seem to help us much. Given the frequently reiterated U.S. insistence that Assad must go, Assad is hardly likely to invite American forces in to preside over his political (and perhaps literal) demise.

So that's that. A straight read of the applicable international law makes it painfully clear: The United States seems to have no lawful basis for using military force inside Syria.

But in international law, "that's that" isn't always the end of the story. When you can't get legality, you can always go for its somewhat disreputable but appealing cousin, "legitimacy."

Here's how you could go about making the quasi-legal case for intervention in Syria, with arguments listed in ascending order of persuasiveness.

1. Mendacious literalism.

You could start by trying to reinterpret the language of the U.N. Charter itself. The charter prohibits "the threat or use of force against the territorial integrity or political independence of any state," so maybe you could argue that any U.S. military intervention would not be against Syria's territorial integrity or its political independence, but would, on the contrary, be undertaken for the purpose of shoring up both. After all, doesn't the two-year old civil war -- which has caused massive refugee flows and has already led to foreign intervention by non-state actors such as Hezbollah -- threaten to destroy Syria altogether? Wouldn't a U.S. intervention designed solely to end the conflict and foster the creation of a functional, non-predatory Syrian state actually be good for Syria?

Nice try! It's a clever argument, but one that has been soundly rejected for many decades by scholars and states alike. That's because any state resorting to force, for however self-interested a reason, would presumably be happy to claim that military intervention inside another sovereign was really, truly meant to shore up the intervenee's independence and territorial integrity.  (C.f. "We had to destroy the village in order to save it.") It's an interpretation of the U.N. Charter that would render the prohibition on the use of force entirely meaningless.

Okay, next?

2. Self-defense, revisited.

Next, you could try to frame intervention in Syria as a permissible act of self-defense. This claim might rest on a variety of bases. You could borrow an argument from the drone strike arsenal, for instance, and assert that the al-Nusra Front, an al Qaeda-linked faction of the Syrian insurgency, is a lawful target in the U.S. armed conflict with al Qaeda and its associates. Heck, the United States has made this argument with regard to drone strikes against al-Shabab in Somalia and assorted militants in Pakistan and Yemen, so why not try it in Syria? Or, if you're not so comfortable with the "war on AQ and its associates" framework, you could just argue that al-Nusra presents an imminent threat to the United States, especially when chemical weapons appear to be sloshing all over the place.

Unfortunately, there are significant problems with this approach. It's already been much criticized -- not to say lambasted -- when used to justify the expansion of U.S. "targeted killings" and probably would go over even less well with the international community if used to justify a much larger-scale military intervention. Also, it only gets us to military action against the al-Nusra Front -- and AQ associates or not, these guys are currently fighting against Assad, who's the real bad guy when it comes to slaughtering civilians. The enemy of our enemy might not be our friend, but they're still causing confusion to our enemy. In the near term, only going after the al-Nusra Front would be doing Assad a big favor. So scrap that.

Maybe Hezbollah would make a better bad guy than the al-Nusra Front. A terrorist's a terrorist, right? And while we can't really argue that Hezbollah's an AQ affiliate -- far from it -- it could still pose an imminent threat to the United States, couldn't it?

Okay, not so much. At the moment, it's hard to make the self-defense argument pass the smell test. No one wants an Iraq redux.

But maybe Hezbollah poses an imminent threat to our good friend, Israel. That one's not such a stretch: Hezbollah has a long history of attacks against Israel and Israeli nationals. Israel has already invoked self-defense as justification for its own missile strikes against targets inside Syria, arguing that the strikes were needed to prevent Hezbollah from acquiring advanced weapons that might be used against Israeli targets. And maybe Israel needs our help defending itself against Hezbollah, a terrorist group that Assad is clearly harboring. We don't have a mutual defense treaty with Israel, but that doesn't mean we couldn't use force in collective self-defense against Hezbollah and Assad's forces if requested by Israel.

That's a slightly stronger argument, but still not a big winner. The use of force in self-defense must be both necessary and proportionate to the threat posed, and it's far from clear, after the Iraq War, that any states other than the United States and Israel would consider a full-scale military intervention in Syria justified under self-defense principles. With more than 90,000 Syrians already dead as a result of the Syrian conflict, claiming that we need to intervene militarily to protect Israel would likely be greeted by a global howl of protest. We already have plenty of enemies in the Middle East. Making even more would be a bad idea.

If Turkey or Jordan could claim to be threatened by the Assad regime -- perhaps by the spread of violence or chemical weapons -- coming to their defense might be a little more palatable, politically. At the moment, though, it would be quite a stretch from a legal perspective.

3. Would the real Syrian government please stand up?

But we're not out of arguments yet. Try this one on for size: The use of force inside a sovereign state is lawful if that state consents, so maybe we can argue that Syria -- the real Syria, really -- actually does consent to U.S. military intervention. At a minimum, Assad's attacks on his own civilian population and significant popular support for the rebel movement raise legitimate questions about who can truly be said to represent the Syrian people.

The Syrian people have an internationally acknowledged right to self-determination, and although the Assad regime still holds Syria's seat at the United Nations, the Arab League has given Syria's Arab League seat to the Syrian National Coalition (SNC), an organization comprised of the more "moderate" Syrian opposition groups (e.g., the al-Nusra Front isn't part of the SNC). The United States and nearly 100 other states have recognized the SNC as the "legitimate representative" of the Syrian people. As a result, it's not completely crazy to assert that the SNC, rather than the Assad regime, is the entity with the ability to consent to foreign military intervention.

Not completely crazy -- but also not completely solid, as arguments go. The SNC is not particularly organized, and not particularly elected, either (as in, not at all elected -- though this doesn't differentiate the SNC leadership from Assad, who was "elected" by the Syrian people in much the same way Joseph Stalin was elected by the Russian people). No one really knows what "the Syrian people" want. And then there's that U.N. seat thing. Recognizing the Syrian National Coalition as the "legitimate representative" of the Syrian people is not, as a legal matter, the same thing as recognizing the SNC as the "government" of Syria. Most legal commentators would probably argue that until the U.N. General Assembly votes to give Syria's U.N. seat to the opposition -- and/or until a substantial majority of U.N. member states have each recognized the Syrian National Coalition as Syria's government -- claims that the SNC can "consent" to foreign military intervention remain dubious.

4. The "responsibility to protect."

Here's the best trump card: In the end, law is not the same as morality.

In 1999, the U.N. Security Council was similarly deadlocked on how to respond to the mounting violence in Kosovo, and the United States and other NATO member states went ahead -- without Security Council authorization -- and intervened militarily to prevent ethnic cleansing. NATO authorities simply refrained from offering a legal theory justifying the use of force. But though few in the international community doubted that the NATO intervention was, at best, of dubious legality and constituted, at worst, a clear violation of the U.N. Charter and international law, few were prepared to condemn the intervention outright: After all, it appeared to have saved thousands of lives. Even the Security Council gave it grudging retroactive blessing.

Since that time, the "responsibility to protect" has gained traction. That concept -- first advanced by the International Commission on Intervention and State Sovereignty (ICISS), an ad hoc commission of experts convened by the Canadian government -- is premised on the idea that "State sovereignty implies responsibility.... Where a population is suffering serious harm, as a result of internal war, insurgency, repression or state failure, and the state in question is unwilling or unable to halt or avert it, the principle of non-intervention yields to the international responsibility to protect."

While ICISS's initial 2001 report urged that action undertaken in the name of the responsibility to protect should, if possible, be authorized by the Security Council, it made it clear that the council could not be considered the ultimate and sole arbiter. True, states might seek to misuse the concept to justify self-interested wars. But ICISS worried just as much about Security Council paralysis. If the Security Council "fails to discharge its responsibility to protect in conscience-shocking situations crying out for action," asserted the ICISS report, concerned states "may not rule out other means to meet the gravity and urgency of that situation."

The responsibility-to-protect concept was later embraced to a significant degree by the Security Council itself, although the U.N. version limited the responsibility to protect to situations involving "genocide, war crimes, ethnic cleansing and crimes against humanity" -- and, unsurprisingly, focused solely on Security Council-endorsed action.

From a moral perspective, of course, the Security Council is irrelevant. The council itself is an artifact of the post-World War II political power structure, and few would defend its anachronistic and unrepresentative voting rules (aside from the five states that benefit from them).  

States -- and international institutions -- are artificial constructs, but human beings are not. What legitimacy can a state have if it preys upon its own people, and what legitimacy can the Security Council have if it fails to act to prevent war crimes and crimes against humanity?

Not much.

5. Legality and Legitimacy

At the moment, "conscience shocking" as we may find the situation in Syria, the international law justifications for military intervention are weak. If the United States decides to intervene militarily in Syria, it will be taking a legal risk.

But this still doesn't tell us whether or not we should intervene in Syria. The ICISS report emphasized that to avoid abuse of the responsibility to protect, those arguing for military action premised on the concept needed to show that the intervention would be consistent with the traditional principles of  "just war" theory: "just cause," "right intention," "last resort," "proportional means," "reasonable prospects," and "right authority." Translated, that basically means we shouldn't use force in Syria unless we have genuinely humanitarian motives, we have genuinely exhausted non-military ways to resolve the crisis, we've done everything reasonably possible to garner international consensus, and -- perhaps most important of all -- we reasonably believe that our intervention will do the Syrian people more good than harm. If we can persuade the world that these criteria are satisfied, history will likely judge a U.S. military intervention kindly. If we can't, we'll be judged far more harshly by allies and enemies alike.

In a 1973 article reflecting on the bloodbath surrounding Bangladeshi efforts to become independent from Pakistan, legal scholars Thomas Franck and Nigel Rodley argued that military intervention for humanitarian reasons "belongs in the realm not of law but of moral choice, which nations, like individuals, must sometimes make."

Forty years later, there's still not much more to be said.


National Security

Big Brother Doesn't Scare Me

Amazon on the other hand...

Here's the headline of the week: A lot of people know a lot about me.

By that, I do not mean that I am famous, though I have my fans. (Hi, Mom!) I'm referring to the latest round of Big Brother revelations. The government knows whom I call. It knows whom I email. It knows all kinds of stuff about me.

NSA, join the club. As I said, a lot of people know a lot about me.

Let's list and categorize some of those people and some of the things they know:

1) My friends know a lot about me. Some of them have known me since elementary school. Collectively, they know about my bad 1980s hairstyle, my ill-advised romances, and a handful of youthful experiments with illegal substances. Anyone one of them could spread the word about any of this at any time. I live in fear.

2) My neighbors also know a lot about me. They know all about my slovenly habits with regard to the lawnmower. They know that I sometimes drive the kids to school while not fully and completely dressed because it's really very damn early in the morning. They know that bloodcurdling screams sometimes emanate from our house at odd hours, and they probably wonder if someone's being slaughtered in the cellar or if the kids are just having some good old-fashioned fun. They might report me to the police, or child protective services.

3) Strangers in public places -- or sinister freaks stalking me -- know a lot about me. Like everyone else, I occasionally yak away about my personal life to my cellphone, and anyone standing nearby could hear me. Someone could follow me all day, watching and listening, and I'd probably never notice, since I'm not a counter-surveillance expert. I sit in restaurants and bars and talk to my friends, who -- see Item 1-- know all about me already. It would be child's play to eavesdrop.

4) The toll booth people know about me. I love EZ-Pass. That means an unknown number of officials and employees in states all up and down the eastern seaboard know where and when I travel.

5) Oh, those traffic cameras. Just because they caught my car speeding doesn't mean I was speeding. How am I supposed to know what my car gets up to while I'm doing something else?

6) And then there are those store and parking-garage security cameras. Some security guard who's paid $9.85 an hour has probably noticed that I occasionally change clothes in the car.

7) My health insurance company knows a lot about me. They know that I'm a hypochondriac and once went to the emergency room for what I was convinced was a heart attack but turned out to be heartburn. They know that my older child was constantly sticking pebbles up her nose when she was a toddler, requiring several frantic trips to the doctor. Yeah, they know some other stuff, too.

8) The reading public -- rather, the web-browsing public -- knows a lot about me, or could know a lot about me, since any monkey with a keyboard could end up randomly typing my name into Google, which would reveal every dumb thing I've ever said in print or on TV, plus every nasty thing, true or untrue, other people have ever said about me in print or on TV. They might also inadvertently confuse me with some of the other Rosa Brookses out there, who are statistically likely to also have said some dumb things at some point in their lives, and they might blame me not only for my own views and words but for the views and words of my Internet doppelgangers.

9) Facebook knows about me. Facebook knows about the idiotic status posts I put up eight years ago and hastily deleted, and the unflattering pictures of me taken by other people, even though I untagged them. I think. Facebook somehow knows where I go, because even when I don't tell Facebook where I am, sometimes other people tell Facebook. And Facebook tells all its friends everything I tell my friends.

10) Amazon.com knows about me. I buy some weird stuff. That copy of The Anarchist Cookbook might easily be misconstrued, especially in conjunction with the Ninja costume and the survival gear. Shit. Who are those people who work for Amazon?

11) Oh, God, Google knows all about me. Google knows what I search for, literally and figuratively. I swear, those searches -- you know, those ones -- were purely journalistic in nature. And Google has my email, going back over a decade. Google not only has the full email record of various marital and familial disputes, it also has all those draft emails I never sent because I decided they were too intemperate and embarrassing. It has my email correspondence with banks and lawyers. If some cunning Google employee wanted to, she could publicly humiliate me, steal my identity, steal my money, and ruin my life. With ease. When did I decide I wanted Google to know all my secrets? Hey, did you know that about 10 percent of Google employees don't even work in the United States? They're foreigners! And they know all my secrets.

12) Fourteen-year-old hackers in Estonia and military hackers in China know all about me. At least, they could know all about me if they were interested (probably they aren't). If they can hack into tech companies and Pentagon computer systems, I'm betting they can hack into my Verizon and Google accounts, too.

13) The U.S. government? You say the U.S. government might know what numbers I call and how long I spend on the phone? And the NSA can monitor my Internet use if it has some reason to suspect I'm a terrorist? Get in line, guys. Every third person on the street knows more about me than you do.

Here's the truth: We all gave up most of our information privacy long ago, so it's a little hard to see why the fact that the U.S. government is collecting large quantities of phone and Internet data should cost us any more sleep. We Americans apparently have no problem with letting unknown numbers of unelected employees in vast, faceless, for-profit multinational corporations collect and use our personal information, all for the purpose of making more money, but God forbid that officials in our democratically elected government should try to collect some of that same information and use it to prevent terrorist attacks!

Our collective outrage makes no sense to me. After all, the executive branch is at least moderately democratically accountable, which is more than I can say for Google, as much as I love it. And as President Obama noted, these FBI and NSA data collection programs have been vetted by all three branches of government. These programs may be unnecessary. They may even be stupid. But there's no reason to think they're inherently "undemocratic."

And sure, the government's not exactly being transparent, but neither are the multitudes of for-profit companies that are surveiling me in one way or another. What systems does Google have in place to make sure employees don't use your private information to blackmail you, defraud you, steal from you, or destroy your life in some other creative way? I don't know, but I'm guessing they're weaker than the analogous systems set in place by government agencies.

Government data collection, as such, isn't really the problem -- at least not in a world in which practically everyone is collecting data on practically everyone else. The problem, insofar as there is one, is not a privacy problem at all, but an accountability problem, and we reasonably expect our government to be more accountable than corporations. Given the current lack of transparency, we don't know what rules govern who can see what data, under what circumstances, for what purposes, and with what consequences. We don't know if this sweeping data collection has led to mistakes or abuses that have harmed innocent people, and we don't know what recourse an innocent person would have if harmed in some way.

It's reasonable to worry about those questions and to expect government officials to offer a little more clarity. (And, no, this won't somehow "tip off" the bad guys; the bad guys will assume the U.S. government's lying and doing far more than it admits anyway.) If there are innocent individuals who have suffered some real injury as a result of these government data-collection programs, there needs to be a mechanism to remedy the damage and impose appropriate consequences on government wrongdoers. If these data collection practices (or any similar past practices) lead to innocent people getting stuck on no-fly lists, or getting harassed by federal agents, or ending up wrongly detained, there should be a prompt, transparent, and fair means for them to challenge their treatment, see the supposed evidence against them, and get the problem fixed.

The mere fact that large quantities of data are collected by the government isn't an outrage in and of itself, however, and it shouldn't be any more troubling than the fact that countless non-governmental entities also collect (or can gain access to) our "private" data. We should worry about how the data are used, not whether it's collected.