NAPOLITANO: The president’s embarrassment

When Secretary of State John Kerry, apparently irritated by a lack of sleep, gave a snippy and what he thought was an unrealistic reply to a reporter’s question at a London press conference last weekend, he hardly could have imagined the world’s response. Asked whether there is anything Syrian President Bashar al-Assad could do at this relatively late hour to avoid an American invasion, Kerry told an international audience that if Assad gave up whatever chemical weapons his government possesses, the U.S. would forgo an invasion.

But not to worry, Kerry added. Assad is not going to do that, and we will end up invading Syria in order to vindicate President Obama’s threat to do so. For two days, Obama remained silent on this as his arch-nemesis, Russian President Vladimir Putin, grabbed the spotlight and the high moral ground.

Putin, sounding more like a Nobel Peace laureate than the killer he is known to be, offered to broker a deal whereby the Syrian chemical stockpile would be surrendered to the United Nations, the Syrian government could go about defending itself from the al Qaeda-driven effort to take it over, and the U.S. would leave Syria alone.

Obama is generally firm in his belief that he needs to vindicate the threat he made last summer when he was trying to outdo Mitt Romney on sounding tough. It was then that Obama threatened to intervene in the Syrian civil war if chemical weapons were used by the government. Nevertheless, hating the international embarrassment visited upon him when suddenly Putin seems more reasonable than he does, Obama conceded to my Fox News colleague Chris Wallace that the Kerry-inspired and Putin-pushed idea seemed worth considering. And then the Syrian government agreed.

Just last week, the president was arguing that only military force would show the world that the U.S. means what it says. Just last week, he realized that he needed political cover in order to justify an unpopular invasion, and so he asked Congress for permission to invade Syria, even while knowing that he already has the legal authority to invade on his own. Just last week, he dispatched his political team, including former Secretary of State Hillary Clinton, to argue that war is the only way to go. And just last week, he intimated that he might bomb Syria even if Congress said no.

What happened?

What happened was the president’s head counters polled their allies on Capitol Hill earlier this week and informed him that he was about to become the first American president in history to seek war-making authority from Congress and have it denied to him, including by many members of his own political party.

The president cannot even say for sure that the weapons he and his advisers claim were used were in fact deployed by the Assad regime. Nor can they state with intellectual honesty that the freedom or safety of Americans is affected by any weaponry used in this civil war 6,700 miles from our shores.

The legal linchpin of American involvement in a foreign war is not American hatred of one of the weapons systems used in the war, but the imminence of danger to American freedom and safety if we stay out. Treaties to which the U.S. is a party and the body of international law to which the U.S. subscribes make clear that the U.S. cannot lawfully use military force to punish the government of another country without first demonstrating that the other country’s military poses an immediate threat of danger to the U.S. Obama and Kerry have been unable to address this.

They also have been unable to address how the U.S. can punish Syria for using weapons that the U.S. and the U.N. have outlawed but Syria has not. Put aside the fact that Syria is a client state of Russia and hence will be protected by it at the U.N., Syria never agreed to the U.N. prohibition on chemical weapons in the first place. So the U.N. is without lawful authority to authorize any violent American intercession in Syria over the use of these weapons.

We don’t know whether the Syrian government used chemical weapons on its own people who may or may not have been combatants in its civil war. But we do know that the government of Syria — like all governments — has a natural right to defend itself from violent attacks by terrorist groups. We also know that the U.S. used chemical weapons to kill hundreds of Vietcong soldiers in South Vietnam in 1965, and used them as well to kill 76 Americans in Waco, Texas, where federal agents murdered peaceful religious fanatics, including their children, in 1993. Can you imagine the response if another country sought to use violence to punish the Clinton administration for that?

What have we here?

We have a president heedless of his duty to uphold the Constitution by keeping the government within its confines, disdainful of international law when it fails to suit his purposes, and contemptuous of a Congress he once controlled when it feels the heat from the American people who have had enough of being lied to and tricked into wars. The American people have come to realize that war is the mother’s milk of big government: It kills innocents, increases taxes or borrowing, diminishes personal freedom, and unleashes irrational fears and hatreds, and the government continues to grow.

While all of this has been consuming us, the federal debt is approaching $17 trillion and Obama wants to borrow another trillion, the NSA has been exposed as spying on every computer and every mobile phone in the country for the past two years at the insistence of the Obama administration, and the fiscal bankruptcy of Obamacare is now just below the horizon.

Does the president really expect the American people to approve his bombing and killing just to avoid his personal embarrassment? Or is it his professional incompetence he wants to hide?

Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the U.S. Constitution. The most recent is “Theodore and Woodrow: How Two American Presidents Destroyed Constitutional Freedom.” 

© ANDREW P. NAPOLITANO

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