Tag: chemical weapons

Don’t Wreck Relations with Russia and China over Syria

Most opponents of the Obama administration’s plan to launch missile strikes against Syria have rightly focused on the possible costs in American blood and treasure if the United States becomes entangled in that country’s civil war. There is, however, a more subtle, yet extremely worrisome, cost: the potential damage to America’s relations with other important nations, especially Russia and China.

Russian leaders have been extremely outspoken in opposing military measures against Syrian President Bashar al-Assad, especially if such actions are taken without approval from the UN Security Council, on which Russia possesses a veto power. Russian President Vladimir Putin also has warned that a U.S.-led attack on Syria could further destabilize the Middle East, proving “catastrophic” for that region and beyond. Moscow has now dispatched three naval vessels to the eastern Mediterranean to show support for Assad and warn Washington against rash action.

China has been less vocal than Russia in criticizing U.S. policy toward Syria, but Beijing is also opposed to the course that the Obama administration has adopted. The Chinese government shares Moscow’s anger at Washington’s growing tendency to bypass the UN Security Council on matters of war and peace. That is a source of discontent that has been building for a decade-and-a-half. Western (especially U.S.) policy regarding Kosovo—both the war in 1999 and the decision to bypass the Council and grant that province independence from Serbia in 2008—became a prominent source of irritation. The U.S.–led invasion of Iraq in 2003, again without Security Council approval, added to the list of Sino-Soviet diplomatic grievances against Washington and its allies. Most recently, the West’s cynical misuse of a Council resolution authorizing air strikes in Libya, supposedly to prevent Muammar Gaddafi’s forces from attacking innocent civilians, antagonized both Beijing and Moscow.

The Obama administration’s transformation of the Libya resolution into a vehicle for regime change makes Russian and Chinese officials especially suspicious that the proposed limited missile strikes to punish Assad for the use of chemical weapons will be perverted in the same fashion. And it is clear that Beijing and Moscow are tired of having Washington disregard their views and flout the interests of their countries.

U.S. leaders need to do a far better job of calculating America’s foreign policy priorities. Maintaining good relations with Russia and China outweigh any theoretical gains that might flow even from a well-executed policy regarding Syria. And the prospects of a meaningful U.S. policy “victory” in that country are midpoint between slim and none.

Conversely, we need cooperation from Moscow and Beijing on a host of important issues. Without Russia’s help, there is little chance for serious progress on nuclear issues, either reducing the bloated U.S. and Russian stockpiles of such weapons or discouraging Iran and other countries from barging into the global nuclear weapons club. China’s cooperation is even more important. Not only is China a major purchaser of U.S. government debt, which in an era of chronic budget deficits is no trivial matter, but the country is an increasingly crucial U.S. trading partner and a vital factor in the overall global economy. An angry, recalcitrant China would not be good for America’s or the world’s economic health.

China is also the most important player in efforts to discourage North Korea from engaging in reckless, destabilizing conduct. During the first half of 2013, Beijing appeared to grow weary of Pyongyang’s disruptive, provocative conduct and began to exert pressure on its obnoxious client. That pressure has been at least one factor in North Korea’s more conciliatory behavior in the past few months. But China will have little incentive to continue that course if Washington tramples on Beijing’s interests in Syria and the rest of the Middle East.

Obama administration officials must avoid policy “tunnel vision.” Pursuing a dubious strategy in Syria is bad enough, even taken in isolation. Doing so when it will likely damage U.S. relations with two major powers in the international system is dangerously myopic.

Cato Brief Gains National Acclaim

Remember Bond v. United States, that typical story of adultery, federalism, and chemical weapons?  Cato has actually filed four briefs in Bond, most recently last month, the last three making the point that the president can’t expand federal constitutional powers simply by signing a treaty.

Our arguments are based on a 2005 law review article by Georgetown law professor (and Cato senior fellow) Nicholas Quinn Rosenkranz, the primary author of these last three briefs. It’s certainly unusual for a law review article to play a pivotal role in a Supreme Court case, but, as those following Bond know, there’s little “usual” about this case. 

Maybe that’s why the national media is starting to pay attention to our attempt to get the Supreme Court to be faithful to this particular corner of the Constitution: last week, the National Law Journal declared our Bond filing its “brief of the week.”

For more on this case, and our arguments, watch the lunch panel we had on Friday, featuring Nick Rosenkranz and Chief Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit.  The Supreme Court will hear oral argument in Bond in October.

Washington Foolishly Tilts Towards War in Syria

The bitterest fights tend to be civil wars. Today, Syria is going through such a brutal bloodletting. 

The administration reportedly has decided to provide arms to Syria’s insurgents. It’s a mistake.

This kind of messy conflict is precisely the sort in which Washington should avoid. Despite the end of the Cold War, the U.S. armed services have spent much of the last quarter century engaged in combat. At the very moment Washington should be pursuing a policy of peace, policymakers are preparing to join a civil war in which America’s security is not involved, other nations have much more at stake, many of the “good” guys in fact are bad, and there would be no easy exit.

Military action should not be a matter of choice, just another policy option. Americans should have something fundamental at stake before their government calls them to arms.

No such interest exists in Syria.

Intervention against Damascus means war. Some activists imagine that Washington need only wave its hand and President Bashar Assad would depart. However, weapons shipments are not going to oust a regime which has survived two years of combat. Intervening ineffectively could cost lives and credibility while ensuring heavier future involvement.

There is no serious security rationale for war. Damascus has not attacked or threatened to attack America or an American ally. America’s nearby friends, Israel and Turkey, are capable of defending themselves.

Another concern is the conflict spilling over Syria’s borders. But this does not warrant U.S. intervention. Maintaining geopolitical stability rarely approaches a vital interest justifying war.

Moreover, intervening would not yield stability. Washington foolishly attempted to sort out Lebanon’s civil war three decades ago and was forced into an embarrassing retreat. There’s no reason to believe joining the Syrian killfest today would yield a better result.

Another claim is that ousting the Assad dictatorship, allied with Tehran, would weaken Iran. Likely so, but then Iran would have a greater incentive to emphasize ties with Shia-dominated Iraq, which also has been aiding Assad.

Moreover, a chaotic, fragmented, sectarian Syria likely would do more to unsettle Iraq, Israel, and Lebanon, allied or friendly to America, than Iran. Tehran’s divided elite also might close ranks in response to an increased feeling of encirclement.

Advocates of U.S. action point an accusing finger at Iran, Lebanon’s Hezbollah, and Russia for helping Damascus. However, Qatar and Saudi Arabia are providing money and weapons to the rebels. Turkey is offering sanctuary for insurgents. The international nature of the struggle is a good reason for Washington to stay out.

Syria’s chemical weapons stockpiles also argue against intervention. Chemical agents are the least effective and most geographically constrained of so-called weapons of mass destruction. Thus, “leakage” is more likely to threaten Syria’s neighbors than America.

Weakening or overthrowing the Assad regime is more likely to release chemical agents to potentially hostile governments or groups. Air strikes would loose chemicals against surrounding civilians. Boots on the ground would mean regime change, leaving Damascus no reason not to use chemical weapons as a last resort defense.

The most pressing concern is humanitarian. But Syria is not a case of genocide committed by an armed government against an unarmed people. There are two forces ready to kill. Defeating one does not mean peace. Rather, it means the other gets to rule, perhaps ruinously.

In both Kosovo and Rwanda the U.S.-backed victors committed atrocities. In Syria reprisals are certain whoever wins. Neither Afghanistan nor Iraq offer reasons for optimism—extended blood-letting, interminable involvement, disappointing outcome.

The result in Syria actually could be far worse, because of the rise of Islamic radicalism among insurgents. These fine folks recently executed a 15-year-old boy for blasphemy in front of his parents.

The final pitch for war is camouflaged as a call for American leadership. However, whether leader or follower, the U.S. would lose by attacking Assad.

Although diplomacy looks forlorn after two years of combat, it remains the best hope. Despite recent gains, Assad’s forces remain unlikely to reassert control over the northern half of the country. The opposition’s divisions and Assad’s outside assistance make a complete rebel victory unlikely. All of the surrounding states have much to lose from continuing war. A second best modus Vivendi might be possible.

Even if diplomacy fails, however, Washington should stay out of the war.

Syria is a tragedy. There is no reason to make it America’s tragedy. President Barack Obama should ask: does he want his administration to be defined by involvement in an unnecessary and unpopular no win war, as was that of his predecessor?

WSJ Calls for No-Fly Zone in Syria, Acknowledges No-Fly Zone Isn’t Enough

It seems the Wall Street Journal editorial board has yet to identify a conflict in which the United States should not intervene. Today, they again call for U.S. military intervention in Syria and criticize President Obama for his inaction. Their main recommendation? Easy: set up a no-fly zone: 

The U.S. could boost its diplomatic leverage with the rebels and their regional allies by enforcing no-fly zones over portions of Syria. That would help prevent the regime from using its attack jets and helicopter gunships against civilian targets while allowing insurgents to consolidate and extend their territorial gains. It also means we could use limited force in a way that strengthens the hand of rebels we support at the expense of those we don’t. 

The key point here is that the Journal leaves open the possibility of using “limited force” to help the rebels. Indeed, this is what no-fly zones often become: precursors to additional involvement at a later date (think Iraq and Libya). I argued as much last week: 

If the no-fly zone fails to swiftly halt the violence, some will claim that preserving U.S. credibility requires an even deeper commitment. Or [no-fly zones] can just become a slippery slope in their own right. The ink was barely dry on the UN Security Council resolution authorizing a no-fly zone over Libya before the mission morphed into a no-drive zone on the ground, and then a major military operation to overthrow Qaddafi’s government. 

As a general rule, we shouldn’t send our military on feel-good missions that have little chance of success. And that is what no-fly zones are. They also have a clear political purpose, in this case to ensure that the opposition prevails over the Assad regime and its supporters. There is no such thing as an impartial intervention. 

In Libya, there wasn’t such an explicit call for a no-fly zone as a means to toppling Muammar Gaddafi. The UN resolution authorizing the no-fly zone did not include “regime change” as a goal, but that’s what it became. In Syria, a no-fly zone would be used explicitly for the purpose of toppling Bashar al-Assad’s regime. But if regime change is the goal, a no-fly zone will not do much to lead us there. They are security-theater, as Ben Friedman has pointed out: “No-fly zones commit us to winning wars but demonstrate our limited will to win them. That is why they are bad public policy.” 

Of Course Defendants Can Challenge the Constitutionality of Laws Under Which They’re Prosecuted

Hard cases make bad law, the saying goes.  Well, a bizarre case that the Supreme Court decided unanimously today has set a good precedent for the enforcement of residual Tenth Amendment powers. 

As I described in December when Cato filed a brief in Bond v. United States:

Carol Anne Bond learned that her best friend was having an affair with her husband, so she spread toxic chemicals on the woman’s car and mailbox. Postal inspectors discovered this plot after they caught Bond on film stealing from the woman’s mailbox. Rather than leave this caper to local law enforcement authorities to resolve, however, a federal prosecutor charged Bond with violating a statute that implements U.S. treaty obligations under the 1993 Chemical Weapons Convention.

Bond pled guilty and was sentenced but now appeals her conviction on the ground that the statute at issue violates the Tenth Amendment – in that her offense was local in nature and not properly subject to federal prosecution. The Third Circuit declined to reach the constitutional question, holding that Bond did not have standing to raise a Tenth Amendment challenge and that, following Supreme Court precedent, a state actor must be a party to the suit in order to challenge the federal government for impinging on state sovereignty. Bond now seeks Supreme Court review on the ground that the statute, as applied to her, is beyond the federal government’s enumerated powers.

Our brief argued that a defendant clearly has standing to challenge the constitutionality of the statute under which she was convicted, but also that lower courts are wrong in assuming that both the president’s power to make treaties and Congress’s power to make laws executing those treaties are unconstrained by the Constitution.  That is, many judges seem to erroneously think that treaties can give the federal government powers it doesn’t otherwise have under the Constitution.

The Court’s ruling today, in a tight opinion by Justice Kennedy, makes clear that individuals can indeed raise Tenth Amendment claims that the federal government has overstepped its enumerated powers.  The Court took no position on the merits of Bond’s constitutional argument – relating to the expansion of federal criminal law via the Treaty Power into areas that should be handled at the state and local levels – but this non-decision is in itself a positive development because it signals that the underlying issue is in dispute.

The Third Circuit is now charged with determining in the first instance whether the law implementing the chemical weapons treaty is “necessary and proper for carrying into execution” the Treaty Power, including whether it’s overbroad if it snares people like Bond.

Even if Bond loses on the merits in the Third Circuit and/or the Supreme Court, however, her case has confirmed the idea that someone directly and particularly harmed by a federal law can challenge that law’s constitutionality.  As Justice Ginsburg said in her concurrence,

a court has no “prudential” license todecline to consider whether the statute under which the defendant has been charged lacks constitutional application to her conduct. And that is so even where the constitutional provision that would render the conviction void is directed at protecting a party not before the Court. ….

In short, a law “beyond the power of Congress,” for any reason, is “no law at all.” Nigro v. United States, 276 U. S. 332, 341 (1928). The validity of Bond’s conviction depends upon whether the Constitution permits Congress to enact §229.  Her claim that it does not must be considered and decided on the merits.

For more on the proper scope of the Treaty Power, I recommend Georgetown law professor Nicholas Quinn Rosenkranz’s “Executing the Treaty Power.”

Update:

Josh Blackman parses Justice Kennedy’s opinion and shows how it tracks the approach that Randy Barnett and Cato have been taking in our Obamacare briefs.

A Bizarre Case That Could Make Some Good Law

Carol Anne Bond learned that her best friend was having an affair with her husband, so she spread toxic chemicals on the woman’s car and mailbox. Postal inspectors discovered this plot after they caught Bond on film stealing from the woman’s mailbox. Rather than leave this caper to local law enforcement authorities to resolve, however, a federal prosecutor charged Bond with violating a statute that implements U.S. treaty obligations under the 1993 Chemical Weapons Convention.

Bond pled guilty and was sentenced but now appeals her conviction on the ground that the statute at issue violates the Tenth Amendment – in that her offense was local in nature and not properly subject to federal prosecution. The Third Circuit declined to reach the constitutional question, holding that Bond did not have standing to raise a Tenth Amendment challenge and that, following Supreme Court precedent, a state actor must be a party to the suit in order to challenge the federal government for impinging on state sovereignty. Bond now seeks Supreme Court review on the ground that the statute, as applied to her, is beyond the federal government’s enumerated powers.

Cato joined the Center for Constitutional Jurisprudence in filing a brief supporting Bond’s request. We argue not only that a defendant clearly has standing to challenge the constitutionality of the statute under which she was convicted, but that lower courts’ assumption that both the power to make treaties and Congress’s power to make laws executing those treaties are unconstrained by the Constitution. This assumption is premised on a perfunctory acceptance of an overly broad interpretation of Missouri v. Holland, 252 U.S. 416 (1920). That reading of Missouri v. Holland, however, is contrary to precedent, has been undermined by subsequent Court decisions, and if allowed to stand, will seriously undermine the notion that the federal government is one of only limited, enumerated powers.

The Court’s recognition that the constitutional issues Bond raises warrant serious review would begin the process of reconsidering the meaning of Missouri v. Holland and its progeny. Beyond the obviously erroneous ruling on standing here, this case offers the opportunity to reinforce limits on the expansion of federal criminal law into areas that should be handled at the state and local levels.

Many thanks to Cato legal associate Trevor Burrus for his help with our brief, which you can read here.  The Court will be deciding early in the new year whether to hear the case.