The administration is violating the law by aiding the Syrian opposition.
Tuesday, on the Corner, I decried Republican assent to the Obama policy of arming the opposition to Syrian dictator Bashar Assad. As I’ve previously observed, these so-called rebels are more accurately described as mujahideen
— meaning jihad warriors, which is what many of them proclaim
themselves to be. Throughout its ranks and in key leadership posts, the
Assad opposition championed by the bipartisan Beltway prominently
features the Muslim Brotherhood, a virulently anti-American
Islamic-supremacist organization. The opposition, moreover, is rife with
al-Qaeda-affiliated terrorists, including groups such as al-Nusra and
the Islamic State of Iraq and the Levant. These jihadists are among the
opposition’s most effective fighters, so much so that the purportedly
“moderate” commanders have threatened to quit the “Free Syrian Army” — the group Washington would have us support — if Western pressure to exclude them continues.
In the Corner post, I belittled Washington’s approach as “the Obama-GOP Doctrine”: to wit, “If you are with us, you are with the terrorists” — a starkly embarrassing contrast to the Bush Doctrine (“Either you are with us or you are with the terrorists”) announced in the aftermath of the 9/11 attacks.
This latest round in the roiling debate over Syria policy was triggered by President Obama’s waiver of statutory prohibitions against aiding terrorists. In response to fierce criticism, the administration and its bipartisan supporters claim that the waiver is a valid exercise of the president’s authority under the Arms Export Control Act (AECA). They urge (a) that the waiver is necessary to provide the Syrian “rebels” with equipment that will protect them from what is alleged to be the Assad regime’s practice of using chemical weapons; and (b) that since the AECA applies to Syria only — purportedly — because of its relationship with Hezbollah, the waiver is appropriate because it is designed not to help Hezbollah but to help the opposition that is fighting both Hezbollah and Assad.
These rationalizations fail for several reasons.
1. The Waiver Is Illegal Under the Terms of the AECA
Notice that my post does not confine itself to the AECA — I contended that Obama is violating “prohibitions in federal law” against aiding terrorists. These prohibitions are considerably broader than just the AECA. But for starters, let’s stick to the AECA.
Under
the pertinent provision
of the act, the prohibitions against military aid to a country are not
limited by its government’s history of promoting particular terrorist groups.
That is to say, even if it were correct that Hezbollah alone was responsible
for the AECA’s application to Syria, this would not narrow transactions
prohibited under the statute to those by which the Assad regime could benefit
Hezbollah. (As it happens, Hezbollah is far from the only terrorist entity
abetted by Syria; the Assad regime’s patron is Iran, the world’s numero uno
terrorism promoter; Syria, furthermore, has a history of supporting and providing
safe harbor for Hamas — the Muslim Brotherhood’s Palestinian terrorist branch,
which happens to be allied with the “rebels” in the Syrian civil war.)
In point of fact, AECA prohibitions apply to countries, not regimes that govern countries — i.e., they apply here to Syria, not just Assad. There is good reason for this. If a government with a history of supporting terrorism is on the brink of collapse or overthrow, there is even more risk than usual that any weaponry and other military aid we provide will fall into the hands of terrorists. This is not just abstract logic; we know it from our own very recent experience: Since the regime fell in Qaddafi’s Libya — thanks to Obama’s unauthorized war — weapons distributed to and purloined by jihadists have fueled al-Qaeda’s operations in North Africa and may well have contributed to the Benghazi massacre, in which four American officials were murdered and several others seriously wounded.
In any event, once the AECA applies to a country, the provision of military and other aid outlined in the statute is prohibited. The president’s power to waive this prohibition is very limited. It is not good enough for the president to say the aid is in U.S. interests. A waiver is valid only if the aid in question is “essential” to U.S. “national security” interests. The interests of Syrians are irrelevant under the law’s plain terms.
It is inconceivable that supplying materiel to Syrians, including equipment that protects people from chemical weapons, could be essential to American national security. Obviously, if American national security were actually at risk, we would be invading Syria with our own forces, not arming the Muslim Brotherhood and al-Qaeda.
In fact, in the case of Syria, it is more likely true that withholding protective equipment and arms is essential to American national security. There are, after all, reports — from Turkey, Iraq, and Syria — detailing chemical-weapons manufacturing, procurement, and use by al-Qaeda-affiliated groups that are systematically incorporated into the operations of the Syrian opposition. The Obama administration and Republican leaders are in high dudgeon over Assad’s alleged use of chemical weapons, but they seem to have a frog in their throats when it comes to the “rebels.” As I recounted in a recent column, though:
Our government’s provision to the opposition of protective equipment could, perversely, encourage these jihadist elements to continue their chemical-weapons activities. Access to protective equipment means there is less risk in the manufacture, handling, and use of these weapons.
As noted above, my post was not limited to the AECA. Federal law prohibits material support to terrorism. In fact, since being enacted in the mid-Nineties, the material-support laws have become the backbone of anti-terrorism prosecutions. Numerous sympathizers of al-Qaeda, Hezbollah, and the Muslim Brotherhood’s Hamas organization have been sentenced to lengthy jail terms for providing assets that can be useful to terrorists in their operations.
As
I recounted in the post, Senator Bob Corker unabashedly asserted that the U.S.
government knows its support of the “rebels” means “some people are going to
get arms that should not be getting arms”; yet he rationalized that this had to
be overlooked for the greater good of “support[ing] the free Syrian
opposition.” Under federal law, however, there is no overlooking it. Having a
(purportedly) higher purpose is not a defense for the knowing provision of
material support to terrorists.
In fact, many material-support prosecutions involve donations to ostensible Islamic charities. Sounding much like Senator Corker, the defendants routinely claim that, while they knew some of their support would probably fall into terrorist hands, this was a risk worth running because they had a higher purpose, to promote social-welfare activities. Those defendants are now serving decades in prison. That’s because American law — at least when you have a Justice Department that enforces it — draws a bright line against terrorism. If an entity facilitates terrorism, even as only a small part of its activities, our law deems it radioactive, such that contributing to it is a felony, period. It doesn’t matter that the donor says he had good intentions.
In the Corner post, I belittled Washington’s approach as “the Obama-GOP Doctrine”: to wit, “If you are with us, you are with the terrorists” — a starkly embarrassing contrast to the Bush Doctrine (“Either you are with us or you are with the terrorists”) announced in the aftermath of the 9/11 attacks.
This latest round in the roiling debate over Syria policy was triggered by President Obama’s waiver of statutory prohibitions against aiding terrorists. In response to fierce criticism, the administration and its bipartisan supporters claim that the waiver is a valid exercise of the president’s authority under the Arms Export Control Act (AECA). They urge (a) that the waiver is necessary to provide the Syrian “rebels” with equipment that will protect them from what is alleged to be the Assad regime’s practice of using chemical weapons; and (b) that since the AECA applies to Syria only — purportedly — because of its relationship with Hezbollah, the waiver is appropriate because it is designed not to help Hezbollah but to help the opposition that is fighting both Hezbollah and Assad.
These rationalizations fail for several reasons.
1. The Waiver Is Illegal Under the Terms of the AECA
Notice that my post does not confine itself to the AECA — I contended that Obama is violating “prohibitions in federal law” against aiding terrorists. These prohibitions are considerably broader than just the AECA. But for starters, let’s stick to the AECA.
In point of fact, AECA prohibitions apply to countries, not regimes that govern countries — i.e., they apply here to Syria, not just Assad. There is good reason for this. If a government with a history of supporting terrorism is on the brink of collapse or overthrow, there is even more risk than usual that any weaponry and other military aid we provide will fall into the hands of terrorists. This is not just abstract logic; we know it from our own very recent experience: Since the regime fell in Qaddafi’s Libya — thanks to Obama’s unauthorized war — weapons distributed to and purloined by jihadists have fueled al-Qaeda’s operations in North Africa and may well have contributed to the Benghazi massacre, in which four American officials were murdered and several others seriously wounded.
In any event, once the AECA applies to a country, the provision of military and other aid outlined in the statute is prohibited. The president’s power to waive this prohibition is very limited. It is not good enough for the president to say the aid is in U.S. interests. A waiver is valid only if the aid in question is “essential” to U.S. “national security” interests. The interests of Syrians are irrelevant under the law’s plain terms.
It is inconceivable that supplying materiel to Syrians, including equipment that protects people from chemical weapons, could be essential to American national security. Obviously, if American national security were actually at risk, we would be invading Syria with our own forces, not arming the Muslim Brotherhood and al-Qaeda.
In fact, in the case of Syria, it is more likely true that withholding protective equipment and arms is essential to American national security. There are, after all, reports — from Turkey, Iraq, and Syria — detailing chemical-weapons manufacturing, procurement, and use by al-Qaeda-affiliated groups that are systematically incorporated into the operations of the Syrian opposition. The Obama administration and Republican leaders are in high dudgeon over Assad’s alleged use of chemical weapons, but they seem to have a frog in their throats when it comes to the “rebels.” As I recounted in a recent column, though:
[Here’s] the dirty little secret about chemical weapons: The rebels not only want them, they have them and they quite likely have used them, both in Syria and elsewhere. Al-Qaeda has been seeking to procure and use chemical weapons for over 20 years — and unlike Assad, al-Qaeda affiliates are quite likely to use them against the United States and Israel if they have the chance.
Our government’s provision to the opposition of protective equipment could, perversely, encourage these jihadist elements to continue their chemical-weapons activities. Access to protective equipment means there is less risk in the manufacture, handling, and use of these weapons.
2.
Material Support to Terrorism
As noted above, my post was not limited to the AECA. Federal law prohibits material support to terrorism. In fact, since being enacted in the mid-Nineties, the material-support laws have become the backbone of anti-terrorism prosecutions. Numerous sympathizers of al-Qaeda, Hezbollah, and the Muslim Brotherhood’s Hamas organization have been sentenced to lengthy jail terms for providing assets that can be useful to terrorists in their operations.
In fact, many material-support prosecutions involve donations to ostensible Islamic charities. Sounding much like Senator Corker, the defendants routinely claim that, while they knew some of their support would probably fall into terrorist hands, this was a risk worth running because they had a higher purpose, to promote social-welfare activities. Those defendants are now serving decades in prison. That’s because American law — at least when you have a Justice Department that enforces it — draws a bright line against terrorism. If an entity facilitates terrorism, even as only a small part of its activities, our law deems it radioactive, such that contributing to it is a felony, period. It doesn’t matter that the donor says he had good intentions.
Obviously, in Syria, as in Libya, the Obama
administration and those who support its policy want a different set of
laws for themselves from the one that Americans are obliged to follow.
But Congress’s job — especially the loyal-opposition part of Congress —
is to act as a check against executive lawlessness. Here, sadly,
Congress is encouraging the administration to violate the law.
3. Bring
Back the Bush Doctrine . . . and Try Following It
A dozen
years ago, following the 9/11 attacks — themselves the foreseeable result of
Clinton-era fecklessness about al-Qaeda and solicitude towards “moderate”
Islamic supremacists — Republicans rightly sensed that it was time to
demonstrate firm resolve. President Bush spoke for them, and for most
Americans, when he laid down an unambiguous, unapologetic marker: “You are with
us, or you are with the terrorists.”
Now, by
contrast, the Obama administration has quite intentionally moved us away from
that shining but fleeting moment of strategic clarity. What we need is an
opposition party that resists. What we need is an opposition party that
remembers why what President Bush said in the days after nearly 3,000 of us
were killed needed both to be said and acted on. What we need is an opposition
party that says if one dollar or one bullet goes to al-Qaeda or the Muslim
Brotherhood, that is one too many.
That kind of
opposition is sorely lacking.
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