A former counselor during the first two years of the Obama administration to the undersecretary of defense for policy, Brooks said that drone strikes have evolved “from a tool used in extremely limited circumstances to go after specifically identified high-ranking al-Qaeda officials to a tool relied on in an increasing number of countries to go after an eternally lengthening list of putative bad actors, with increasingly tenuous links to grave or imminent threats to the United States.”
So what legal basis would be used for a military strike in Syria? The drone strikes in Yemen are openly authorized by that country’s government. In Pakistan there is a less public wink-and-nod approach, though the AUMF clearly applies to al-Qaeda and Taliban targets.
What imminent threat to the United States does the Assad regime pose? You could try to argue that the radical jihadists supporting the opposition to Assad have some distant al-Qaeda ties. But wouldn’t the U.S. bombing be supporting them in a joint effort to end Assad’s regime?
What about U.S. participation in a no-fly zone in Libya based on humanitarian needs?
Doesn’t work. The legal basis for that no-fly zone was U.N. Security Council Resolution 1973, adopted March 17, 2011, which imposed “a ban on all flights in the airspace of the Libyan Arab Jamahiriya in order to help protect civilians.”
The Security Council also authorized member states who have notified the Security Council and League of Arab States, acting nationally or through regional organizations, “to take all necessary measures to enforce compliance.”
The reference to “all necessary measures” is “the standard phrase the Security Council uses to authorize states to act militarily,” according to a Yale Journal of International Law Online article by Michael N. Schmitt, a former professor of international law at the U.S. Naval War College.
There’s no such resolution for Syria. Without one, or without Congress approving a Syrian resolution, there is no legal basis for U.S. forces striking Syrian targets.
For previous Fine Print columns, go to washingtonpost.com/fedpage.