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Deborah Pearlstein pointed me to this MSNBC interview with Deputy National Security Advisor Tony Blinken, in which Blinken states (around the 8:45 mark):
As a matter of international law, you’re correct that either the Security Council needs to act or you need to be acting in self defense or in the defense of a partner country. Here what we believe is we have a very legitimate basis . . . to enforce a profound international norm.This statement support Marty’s interpretation. As I said earlier, this “illegal but legitimate” view means that the President, who says he can invade Syria without congressional authorization, must also think he can violate non-self-executing treaties consistent with the “Take Care” clause (a view that Marty thinks is wrong). I also think, probably contrary to Marty, that an overt invocation of “illegal but legitimate” would be a change of the prior U.S. position. Mike Matheson’s famous insistence that Kosovo did not establish “new doctrines or precedents” can no longer be maintained, since the administration (including Blinken) is expressly invoking Kosovo as a precedent, and it is now hard to see how “illegal but legitimate” in the humanitarian context is not a USG doctrine. I am not even sure what is at stake over the distinction between a humanitarian intervention exception to the Charter and “illegal but legitimate" other than the Take Care clause implication and the possible awkwardness for the U.S. military that I noted in my last post. On the international plane “illegal but legitimate” is no less subject to “abuse” by others nations than a humanitarian intervention exception to the Charter.