Legal Fears Slowed Aid to Syrian Rebels

 From The Wall Street Journal:

A string of cautionary opinions from administration lawyers over the last two years sheds new light on President Barack Obama's halting and ultimately secretive steps to provide military support to rebels in Syria's deadly civil war.

Members of the so-called Lawyers Group of top legal advisers from across the administration argued that Mr. Obama risked violating international law and giving Syrian President Bashar al-Assad the legal grounds—and motivation—to retaliate against Americans, said current and former officials.

 

The group's arguments in part help explain why the White House agonized over Syria intervention and why Mr. Obama eventually opted to provide military aid to the rebels covertly through the Central Intelligence Agency, to help mitigate the legal risks and keep the U.S.'s profile low.

Administration lawyers recently determined that providing such aid was allowed under U.S. domestic law, helping to clear the way for limited arms shipments to handpicked groups of rebels likely starting in August. But the lawyers sidestepped questions over international law by asserting that supporting the rebels was justified by a number of factors: the humanitarian crisis in Syria, alleged human-rights violations by the regime and Iranian arms shipments that violate U.N. Security Council sanctions.

"They are assuming the risks," said a former administration official involved in the legal debate.

 

Experts say President Bill Clinton took a similar approach in justifying the Kosovo bombing campaign in 1999, which, like the Syria effort, wasn't authorized by the U.N. Security Council.

"An old trial lawyer adage is that when the law is not on your side, argue the facts instead," said John Bellinger, a former State Department legal adviser during the Bush administration. "Here, the [administration] is saying that the aid is permissible under U.S. domestic law but is careful to avoid saying the aid is permissible under international law."

U.N. Security Council resolutions that could authorize outside intervention in Syria have been blocked by Russia, which was critical of the North Atlantic Treaty Organization-led mission in Libya in 2011, constraining the U.S.'s legal options.

As a consequence of the decision to provide support through the CIA, officials say, U.S. military aid to rebel forces is more limited than it would have been had it gone through the military.

The CIA's arming of the rebels is expected to begin now that a tentative accord has been reached with lawmakers who had threatened to freeze some funding, officials said. Lawmakers are still demanding that the administration report back with further justification for the CIA program before taking additional action, officials say.

A reconstruction of the debate over arming the Syrian opposition shows how much administration lawyers played a cautionary role in the process, parrying calls for more assertive U.S. action by citing the risks of skirting international law, triggering a shooting war and setting legal precedents that could be cited by other countries, such as Russia and China.

At the State Department, lawyers reviewing the proposals found themselves at odds with their more forward-leaning bosses—former Secretary of State Hillary Clinton and now John Kerry—who both pushed a reluctant Mr. Obama to ramp up military support to the rebels, including through the provision of arms.

Some of the lawyers involved were uncomfortable with what they saw as a policy that could be seen as similar to the Reagan administration's backing of Nicaragua's Contra guerrillas in the 1980s.

Some of them cited a 1986 decision from the International Court of Justice on the American role in Nicaragua that said the U.S. was in "breach of its obligation under customary international law not to intervene in the affairs of another state."

U.S. officials give two possible explanations as to why the lawyers were cautious. Some say it reflected the extent to which Mr. Obama and his legal advisers sought to draw a distinction with the Bush administration and its approach to international law. Others say it reflected Mr. Obama's deep reluctance to take steps that could lead the U.S. into another war in the Middle East. The Lawyers Group, which has existed in previous administrations, works by consensus in order to avoid presenting "the client"—the president—with split legal decisions.

Key members of the group raised objections soon after the start of the Syrian uprising, in March 2011, when some in the State Department argued for recognizing the opposition and severing ties to the regime, said current and former officials.

Then-State Department legal adviser Harold Koh and other administration lawyers argued that could be viewed as meaning the U.S. no longer recognized Mr. Assad's government, officials involved in the debate said.

That, they argued, could relieve him of his responsibilities under international law such things as the use of chemical weapons under his government's control. After months of internal debate, the administration called on Mr. Assad to "step aside" but didn't recognize the opposition.

In summer 2012, the White House began to focus on State Department and CIA proposals to ramp up support to the rebels, from providing nonlethal military support, including body armor and night-vision goggles, to small arms, officials say.

In response, the Lawyers Group questioned whether the State Department could provide military support directly to forces fighting a war in which the U.S. wasn't formally engaged. Lawyers also told the White House that providing military aid would allow Mr. Assad under international law to declare Americans combatants, whether in military uniforms or not, and target them for taking sides in another country's civil war.

The lawyers said even a State Department proposal to supply rebel fighters with food rations could give Mr. Assad legal grounds go after Americans.

"The giving of aid is the equivalent of taking sides—if you give them guns or you give them food to survive, you're still supporting them in the effort and the other side can consider you the enemy," one former Obama administration official said.

In December, Mr. Obama recognized a Western-backed opposition coalition as the "legitimate representative of the Syrian people in opposition to the Assad regime," a carefully worded statement that administration lawyers believed stopped short of full recognition.

The legal debate over providing military support to the rebels came to a head earlier this year.

In February, Secretary of State Kerry was poised to fly to Rome where officials hoped he would announce a U.S. decision to, for the first time, provide nonlethal military equipment along with halal meals and medical kits, directly to the Western-backed rebel army of Gen. Salim Idris, current and former U.S. officials said.

At the time, the administration balked at authorizing the State Department to provide military equipment: Using the State Department to do so was "legally available" under domestic law, but questionable under international law. As a result, Mr. Kerry announced only plans to provide food rations and medical kits, disappointing the opposition.

Some lawyers continued to raise objections to even the pared-down plan, arguing that Gen. Idris's Free Syrian Army should deliver the supplies only to unarmed civilians, instead of giving them to fighters, said an official briefed on the matter.

In the end, the State Department delivered the rations and medical kits based on a legal determination that such provisions didn't count as military aid because they didn't improve the fighters' ability, officials said. Moreover, the White House decided the aid couldn't be given exclusively to fighters, but should also go to nonfighters.

While the smaller CIA footprint may reduce the risk that Mr. Assad will launch attacks on U.S. personnel arming and training rebels mainly in Jordan and diplomats and aid workers in other countries such as Lebanon, current and former officials say the legal risks remain.

The lawyers told the White House that Mr. Assad was under no obligation to draw a distinction between the CIA and other branches of the U.S. government.

"Once Assad claims a right to attack American citizens, we're in a whole new game," a former official said.