THE JUDGE: War, What is it Good For?

Never mind that the photos shown by Obama’s folks of aid workers ministering to the supposed victims of government gassing show the workers without gas masks or gloves, and never mind that the Assad regime has permitted U.N. weapons inspectors unfettered access to its materiel, and never mind that the president wants to invade Syria before the weapons inspectors issue their report. The president wants us to believe that the Assad regime intentionally gassed a thousand Syrian innocents who were of no military value to the rebels or threat to the regime — and among whom were, according to former House Speaker Nancy Pelosi, D-Calif., “hundreds of children.”

Even if all this took place as Obama claims, can he lawfully bomb Syria to punish its government for violating international norms or to deter it from doing so again? In a word: No.

International law recognizes only three lawful routes to the use of military force. It recognizes the right of every country to launch military force in order to prevent its own borders from being invaded or to subdue those who commenced an invasion. It also recognizes the ability of any U.N. member state to come to the aid of any other U.N. member state when one of them has been invaded. And treaties to which the U.S. and Syria are parties permit limited purpose invasions when approved by the U.N. None of these lawful scenarios applies to Syria.

Can Obama just launch an invasion of Syria even if it would be unlawful and even if Congress says no?

Because of the vicissitudes of history, the personalities of presidents and the myopic compromises of past Congresses, the area of presidential war-making has different legal and constitutional ramifications. Under the Constitution, only Congress can authorize the offensive use of military force. James Madison’s notes from the Constitutional Convention in 1787 make it obvious that the Framers were nearly unanimous in their resolve to keep the war-making power away from the president and repose it exclusively with Congress. They did this clearly and unambiguously in Article I, Section 8 of the Constitution.

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