America the Coupless

Just because our military won't take over doesn't mean civilians can ignore it.

Happy birthday, America! It's good to live in a land that hasn't had a successful coup attempt, military or otherwise, in 237 years.

Two-hundred thirty-seven coup-less years is nothing to sneeze at. In some countries, the coup d'état is practically a national sport. Haiti has had several dozen coups, and Afghanistan, Thailand, and Bolivia have each had a dozen or more. The 20th century was chock-full of coups in Europe: France saw its last coup attempt in 1961, while the Italians, who've gone in for coups since well before Julius Caesar crossed the Rubicon, tried their most recent coup in the 1970s. Europe has managed to remain largely coup-less for the last few decades, but the 21st century is proving to be a good time for the coup d'état in most other parts of the world. Since the year 2000, there have been coups and coup attempts in Fiji, Ecuador, Congo, Venezuela, Guinea, Nepal, Libya, Syria, Malaysia, Bangladesh, Cote D'Ivoire, Haiti, the Philippines, and Egypt, to offer just a partial list.

You might think that after 237 years, we Americans are just about due for a military coup -- and if you Google the terms "military coup united states," you'll find plenty of nutballs who are thoroughly convinced of it. One right-wing site suggests, "If the American voters are unable to stop the bleeding and remove this lunatic of a President ... then perhaps the military will provide the justice that a growing number of Americans are clamoring for." Another site dedicated to anti-Semitic conspiracy theories advocates a coup to end "Jewish rule in our nation," or, alternatively, to end "the Obama problem." (And you thought Obama was a Muslim!) Then there's someone calling himself "Video Rebel," who warns that our "self-appointed leaders on Wall street [sic]," not content with outsized corporate profits, plan to "release a series of plagues" -- or perhaps start a race war -- then "enslave the survivors." Our only hope of salvation lies in a military coup, since "the American military hopefully will refuse to sacrifice millions of their relatives."

Meanwhile, other Internet denizens live in fear of the military coup that's right around the corner. One self-styled "geopolitical analyst" warns, "The US intelligence community, in conjunction with Wall Street corporate-financier interests, have spent an inordinate amount of time positioning themselves for a possible military coup and martial law take over of the United States," to be led, apparently, by David Petraeus. Another site warns that "various elements" within the U.S. military, angry about federal debt levels, are "actively planning" for the overthrow of President Obama.

Don't start stockpiling munitions just yet: In the non-crackpot world, virtually no one thinks a U.S. military coup is in the realm of the conceivable.

Thankfully, coups just aren't our style. In 2006, Harper's Magazine assembled several top military thinkers and asked them to assess the likelihood of a military coup: The group was unanimous in their conviction that it couldn't happen. It "just wouldn't work here," said Edward Luttwak. "It's impossible given the culture of the military," agreed Charles Dunlap (at the time still a senior Air Force JAG officer). "The professional ethic in the military is firmly committed to the principle that they don't rule," confirmed Andrew Bacevich.

The occasional nutjob notwithstanding, we have an extraordinarily professionalized military, in which, as Dunlap asserts, "[C]ivilian control of the military is ... deeply ingrained." Study after study of military attitudes reaffirms this. An exhaustive 2009 study found that a solid 70 percent of Army officers consider it inappropriate for active-duty military personnel to offer any public criticism of the decisions of senior civilian leaders, and most officers hew strongly to the view that the military's job is to advise, but not to "advocate" or "insist" on matters relating to the use of force.

That's something worth celebrating this 4th of July. There's plenty to criticize about American democracy -- but we don't solve our political disputes with tanks in the streets and elected officials in military detention.

But let's not congratulate ourselves too much. The chances of a military coup in the United States are vanishingly tiny, but that doesn't mean civil-military relations in the United States are healthy. On the contrary: There are plenty of danger signs both within the military and within the civilian population, and civil-military relations are characterized by numerous misunderstandings and misperceptions. (There's also ample reason to worry about the increasing blurriness between military and non-military spheres, a subject I've touched on in previous columns, and will say more about in the future -- but for now, let's just look at military and civilian attitudes towards civil-military relations.)

Start with some troubling trends within the military: For several decades, America's military leadership has self-identified as more conservative and more Republican than the general public. In itself, this isn't necessarily a problem: Most military personnel are professional enough to keep their politics far away from how they do their jobs. But the norm against partisanship seems to be weakening. In a 2012 Foreign Affairs article, Heidi Urben, Peter Feaver, James Golby, and Kyle Dropp warned of a trend towards increasing partisan political activity by military personnel. Looking at surveys, data on political contributions, and a CNAS study showing that "public expression by senior military officials of opposition or support for use of force abroad has a measurable impact on U.S. public opinion," they worried that political endorsements by retired senior officers, "now a regular feature of presidential campaigns, threaten one of the most cherished principles of the U.S. military: its independence from partisan politics."

An excellent study by Urben reinforced the concern that military officers' ideology sometimes spills over into areas vital to healthy civil-military relations. In general, she found, distrust of civilian leadership runs high among Army officers: 55 percent report, for instance, that they believe civilian decision-makers are motivated by "domestic partisan politics" rather than national security concerns. But Urben also found a dismaying partisan gap in Army officers' attitudes towards civilian leadership and attitudes towards military participation in politics: "Republican-leaning officers were more likely to display lower trust levels in the government compared to Democrats. For example, 62% of Republicans felt that when civilians gave orders to the military, domestic partisan politics were the motivation compared to 53% of Democrats. Forty-one percent of Republicans believed that during wartime civilians should let the military run the war, compared to 31% of Democrats. And ... 46% of Republicans felt the president should have served in the military [in order to be respected as commander in chief], compared to just 18% of Democrats."

Urben also found that the Army is a less comfortable place for those who lean to the left. Army officers who self-identified as Democrats were substantially more likely than Republican or independent officers to report discomfort in discussing political views with their colleagues, and junior officers who were Democrats are somewhat more likely to leave the military than their Republican and independent peers.

We don't need a military that mirrors the politics of the nation as a whole, but it's worrying to think that military culture makes some Americans feel less welcome, or that ideology affects officers' commitments to civilian control over the military.

The military isn't solely to blame for these trends. In the age of the all-volunteer military, less than one-half of 1 percent of Americans serves at any given time. If the military is more Southern, less urban, and more politically conservative than the population as a whole, it's in part a reflection of who volunteers (though it also has something to do with recruiting patterns and base relocation decisions).

The wide cultural and demographic gaps between the military and the civilian population make some of the military's distrust of civilian officials unsurprising. A 2011 Pew survey found that "84% of post-9/11 veterans say the public does not understand the problems faced by those in the military or their families," and the 2012 annual Military Times poll found that more than 75 percent of active duty and reserve respondents agreed with the statement, "The military community has little in common with the rest of the country and most civilians do not understand the military."

This doesn't stop the general public from claiming to love the military: The military is, by far, the most highly respected public institution in the United States. But the public offers the military a remarkably shallow form of respect, characterized more by a pro forma "God bless our troops" than by anything approaching clarity on what the military is or does. Thank you for your service, and have a nice day.

For a chillingly high number of Americans, this combination of ignorance and reflexive respect translates into an astounding lack of interest in civilian control of the military: A 2010 Rasmussen poll found that only 44 percent of Americans favor civilian control of the military. Another 28 percent of our fellow citizens "don't know" how they feel about the subject, while an additional 28 percent of our fellow citizens assert that "civilian control of the military is bad for the country." Way to go, America!

Tocqueville famously quipped that in a democracy, the people get the government they deserve. It's a good thing we don't yet have the military we deserve: If we did, we might be seeing tanks in our own public squares.

Happy 4th of July.

SHAWN THEW-Pool/Getty Images

National Security

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.