Chapter 10 - Unilateral Self-Defense and Rescue

Unilateral Use of Force What are the three classic justifications for the use of unilateral power? Defense Collecting bills Reparations and punishment for past attacks Does this extend to protecting citizens abroad?

Pirates and Private War Why was there fewer restrictions on using force against pirates and aborigines? Are pirates a better analogy for the war on terror than is general war? Letters of Marque and Reprisal Issuance of letters of marque and reprisal was renounced by signatories to the Declaration of Paris in 1856 The US did not sign the Declaration of Paris, but agreed to respect it during the Civil War and later, and it was superseded by Hague Declaration of 1970

Responding to General Attacks What formality did traditional international law require before responding to a general attack? What about more limited attacks? Why should the response be different to a limited action like the killing of a soldier, versus a general attack?

Is Imperfect War a Political Question? Is the exercise of the imperfect war power simply negotiated between the political branches? If so, what is the point of studying legal limits on the imperfect war powers? Isn ’ t whatever is negotiated constitutional, and doesn ’ t the President hold all the cards in the negotiations?

The Gulf of Sidra Incident: Repelling (or Provoking?) Attack What did Rep. Fascell think should trigger the WPR (War Powers Resolution)? Did we have to be fighting? What did the White House say? When did the White House notify Congress? Was this a deliberate attempt to provoke Libya? What happened in 1988 that might have been Libya's response?

Provocation What is the problem of presidential provocation? How can presidents provoke attacks within the legal confines of the WPR? Was the Gulf of Tokin incident a fraudulent provocation? What about sinking the Maine in the Spanish American War? What about sinking the Maine in the Spanish American War?

Durand v. Hollins, 8 F. Cas. 111 (1860) Where did this take place? What was Captain Hollins sent to do? What ended up happening? Whose property was really being protected? Who is bringing the lawsuit against whom? What question does this defense raise about presidential powers? Where does the court find that the power to order this type of retaliation resides?

Iranian Hostage Crisis Rescue Mission Why did Secretary of State Vance oppose a rescue mission? What repercussions did Vance fear? Did Carter notify congress before the rescue? What did presidential counsel Cutler cite as authority for not requiring Congressional authority for such a rescue? Why was there no duty to notify Congress about the first stage of the rescue? What was Cutler's catch all response?

The Hostage Act Why did the United States Supreme Court decide that the Hostage Act did not apply? What is the citizenship issue? Why was taking hostages in reprisal left out of the Hostage Act? Do you think the president can do this anyway? How might the rescue power be a subset of the power to repel a sudden attack? Is the capture of American citizens by itself a sufficient legal predicate for exercise of any implied presidential rescue power? Why are the actions of local Navy commanders who are on the scene of attacks limited to: self-defense, ‘‘exercised only as a last resort, and then only to the extent which is absolutely necessary to accomplish the end required.’’

The 1998 Attacks on Sudan and Afghanistan: Striking or Striking Back? What precipitated these attacks? Did Clinton notify Congress in advance of the attacks? What was the legal authority? Why self-defense?

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) In the AEDPA, Congress prohibited various kinds of assistance to countries that sponsor or harbor terrorists. In the preamble to these prohibitions, it made the following ‘‘finding,’’ among others: ‘‘the President should use all necessary means, including covert action and military force, to disrupt, dismantle, and destroy international infrastructure used by international terrorists, including overseas terrorist training facilities and safe havens.’’ Could this have been used post-911?

Domestic Politics What was going on domestically? What is the Wag the Dog factor? What is the appropriations argument for congressional authorization of such actions? What caused Clinton to bomb Iraqi Intelligence Service Headquarters in Baghdad? Why is this a problem for legal justification? Why does exempting attacks on terrorists not undermine the purpose of the WPR?

Assassinations What does Executive Order No. 12,333 ban? What is the traditional definition of an assassination? Why is it a problem as public policy? Is it defined in war time against combatants? When can you kill civilians as well? What are examples of the US targeting civilian populations directly, rather than as collateral damage to military attacks?

When are Assassinations OK? Is there a provision of the United Nations Charter that might shelter assassinations? Would Executive Order 12,333 ban killing al Qaeda members? Who about their bankers? Why might killing the bankers be really effective? When should we use assassinations? How do you get around Executive Order 12,333? Can this be done secretly?