Lost in the ongoing debate about Syria is a rather startling irony: while the Administration argues that intervention is necessary to enforce global norms against chemical weapons, the United States stands in material breach of the Chemical Weapons Convention, the single most important international law on this category of arms. Entering into force in 1997, the CWC prohibits the production, stockpiling, and use of chemical agents. Significantly, it also required member states to completely destroy their stockpiles by April 2007 or obtain an extension from a conference of states-parties. The United States ratified the treaty in the late ’90s and proceeded to comply with the obligation to destroy the U.S. arsenal, which included mustard gas, VX, and sarin. But our stockpile was easily one of the largest in the world, with nearly 30,000 metric tons of chemical agents, and by 2003 it became apparent that meeting the 2007 deadline would be impossible. So Washington requested a new deadline of April 29, 2012, and the conference of states-parties granted the request.

The new deadline, however, was again too soon, and the U.S. military failed to complete the destruction project in time. Today approximately 10% of the arsenal remains in place, and the Pentagon doesn’t expect to finish with disposal until 2023. What’s more, there’s no possibility of another extension: an annex to the CWC establishes that “in no case shall the deadline for a State Party to complete its destruction of all chemical weapons be extended beyond 15 years after the entry into force of [the] Convention.” In short, we’ve been in breach of the CWC for over a year, and we’ll probably continue to breach the treaty for another decade. This breach, moreover, isn’t trivial, as the obligation to destroy stockpiles reduces the risk of proliferation, drastically lowers the risk of use, and generally goes to the very heart of the treaty’s purpose of ridding the world of chemical weapons.

Here’s an interesting news item: The Administration is reportedly preparing to bring military and political leaders of the Syrian rebels to Washington so that they can lobby Congress to approve U.S. military intervention against Assad. I mention this because it seems to highlight a significant evidentiary problem that Congress has to deal with in deciding momentous questions of foreign policy. To inform their decision, members of the House and Senate will have intelligence reports that the President has chosen to share, testimony from executive branch officials, press reports, and whatever information can be gleaned from the rebel leaders. But virtually all of these sources are heavily biased in favor of intervention. Having already decided to pursue military action, the President and his subordinates are disinclined to highlight evidence that might weaken their case. The Syrian rebels are, for obvious reasons, unlikely to present anything other than an argument for intervention. And the U.S. media is both hawkish and sub-optimal as a source of military and foreign intelligence, given frequent lack of access to inside information. Analogizing to domestic litigation, the situation is like having one party to a lawsuit provide virtually all of the evidence, and forcing the court itself to find any support for the counterargument. If the adversarial system elicits truth, this approach may do the opposite. Moreover, the approach is particularly problematic in foreign policy because Congress is unable to employ its usual tools of investigation outside the territory of the United States. Committees, for example, can’t subpoena foreign leaders to testify, staff members can’t gather eyewitness accounts by deposing non-citizens living abroad, and relevant governments may not volunteer relevant and reliable information. In many cases, members of Congress try to make up for the information gap by traveling overseas to meet with foreign leaders and observe conditions, but the instability in Syria renders even that option unavailable. Don’t be surprised if the overwhelmingly one-sided configuration of evidentiary inputs results in Congress approving the use of force.

Cross-posted at Ryan Scoville’s blog.