Blatantly illegal acts of war against dozens of places in Syria are being threatened and prepared by the United States. The official rationale is retaliation and punishment for a chemical or poison gas attack, allegedly committed by Syria’s President Bashar al-Assad, in the Ghouta region near Damascus that killed 1,400 civilians.

Without asking the question, Why would Assad launch such a ghastly chemical strike in the face of a near-certain military response from the US or others? President Obama and Secretary of Hate John Kerry have declared that they know Assad committed the “ugly crime,” as the Arab League called it Sept. 1. But they have not produced any evidence of this crucial allegation. Russia has said that rebels fighting Assad arranged the attack to implicate the government, and Syrian state television has charged that chemical weapons found in a rebel tunnel were made in the United States and Qatar. Without any direct evidence of the origin of the August 21 attack, and after the Iraq catastrophe in 2003, who can shrug off the suspicion of deceit today? Secretary Kerry chants that chemicals only hit areas not controlled by Assad. This fact neither disproves nor weakens the charge that rebels may have committed a “false flag” action.

Competing harms defense?

The Obama Administration speaks about the hideous August war crime as a justification for sending heavy bombers and guided missiles into Syria.  The bombardment and missile strikes being planned by the White House are explained with something like a “defense of necessity” or “justification.” I.e., a plainly unlawful act is permitted or excused by showing that a greater harm is avoided by committing the lesser offense. In the case of ramping up jet fighters, aircraft carriers, Navy destroyers, B-52 bombers, drone jockeys and Cruise missile batteries, the lesser evil could be evil indeed.
The criminality of any US attack is clear. The UN Charter prohibits “the threat or use of force against the territorial integrity of political independence of any state.” The UN Security Council has not authorized an action. There is no Congressional declaration of war, or even a use-of-force resolution, and the Kellogg-Briand Pact and the Treaty of Paris both outlaw war as a means of settling disputes. Ian Hurd, in a NY Times op/ed, said the White House “should not pretend that there is a legal justification in existing law.”  

So how to show that mechanized, satellite-guided militarism is an urgent “necessity”? The criminal code is clear. Any defense of necessity or justification always — as US District Judge Miles Lord instructed the jury that convicted me in 1984 — “requires evidence of each and every one of the following essential elements: 1) The criminal conduct of which the defendant (in this instance the US) stands accused was taken to prevent a greater harm to themselves or others, which was imminent to occur; 2)There was no effective alternative method or course of action available to them that could be taken to avert the harm; and 3) There was a direct causal relationship between the criminal conduct taken and the avoidance of the alleged harm.”

The burden of proof is on
the United States

Regarding #1, showing that a US attack was taken to prevent another gassing of Syrian civilians would require evidence that the bombing destroyed at least some of Assad’s chemical weapons. This evidence would be impossible to find, especially without the US military occupation that the White House says is out of the question. Furthermore, if US bombs disperse plumes of Assad’s deadly chemicals, and if US destruction in Syria strengthens extremist jihadis, how could it be shown that the harm done by our bombs is less than the dirtier, wider, longer and bloodier war ignited by us? The “imminence” of another chemical weapon attack is also impossible to establish. Evidence that Assad was about to launch such an attack would be harder to find than the still-unfound fingerprint or smoking gun tying Assad to the August 21 atrocity.
The second element is the most embarrassing for President Peace Prize, since there are so many alternative actions available. Obama has neither exhausted diplomatic options, convinced key allies that Assad is the criminal, produced an authorizing resolution in the UN Security Council, interdicted weapons shipment to the regime, gotten rid of his own stockpile of banned weapons, nor even, and not the least, pursued charges against Assad at the International Criminal Court in The Hague.

Thirdly, evidence that your war crime directly prevented another party’s war crime would be harder to find than the Holy Grail. If US spy agencies can’t cobble together evidence of Assad’s culpability in the Ghouta massacre, how could they show that US bombs smashed Syrian government nerve agents in their launch tubes?

So far, the illegal White House “war of crime prevention” is just a rhetorical masterpiece of dishonesty, hypocrisy and self-deception. Obama’s rationale fails every test of the necessity defense and has to be rejected.