Chapter 10 - Unilateral Self-Defense and Rescue

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Chapter 10 - Unilateral Self-Defense and Rescue
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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?

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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  later, and it was superseded by Hague Declaration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

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Responding to General Attacks

• What formality was required to respond 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?

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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?
• Isnt whatever is negotiated constitutional, and
  doesnt the President hold all the cards in the
  negotiations?

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The Gulf of Sidra Incident Repelling (or
Provoking?) Attack - 1986

• What did Rep. Fascell think should trigger the
  WPR (War Powers Resolution)?
• 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?

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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?

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Durand v. Hollins, 8 F. Cas. 111 (1860)

• Where did this take place?
• What 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?

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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?

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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.

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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?
• What does the Antiterrorism and Effective Death
  Penalty Act of 1996 (AEDPA) say that was used to
  justify these attacks?
• Could this have been used post-911?

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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?

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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?

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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?