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  later, and it was superseded by Hague Declaration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 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?

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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)?
• 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?

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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 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?

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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?

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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?

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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?