(FindLaw) -- Untold thousands of Americans have been killed by terrorists on American soil. A veiled enemy has declared war on our nation and our way of life. The American people look to one person for answers and action: The president of the United States. What can he do? What should he do?
These are not hypothetical questions. This is real life. How they are answered will affect every American.
Object of terrorism is fear
There is no single or simple definition of terrorism in our laws. . Rather, the well-understood term -- plainly defined by Webster's Dictionary as "the use of violence and threats to intimidate or coerce, esp. for political purposes; and the state of fear and submission so produced" -- has been made unduly complex by lawyers and bureaucrats.
For example, the FBI, which will be the lead federal agency investigating the terrorism of September 11, has its own definition, which differs from the definition in Title 18 of the U.S. Code, which in turns differs from the definition in Title 22 of the U.S. Code.
All the legal definitions ignore the objective of the terrorist's violence. Terrorism is about creating fear.
One commentator, recalling a Chinese proverb, explains that the purpose of terrorism is "to kill one and frighten 10,000." Terrorists succeed when they create fear. A priority of the president, seeking to defeat the terrorists who have attacked the United States, must be to lessen the fear.
Actions by previous presidents
Samuel E. Morison's "Oxford History of the American People" tells us that Thomas Jefferson, in one of his first acts as president, took a pre-emptive action to destroy the "Barbary Pirates" based in Tripoli. Rather than let the pirates attack our merchant ships, Jefferson sent the Navy into another nation's harbor to protect U.S. vessels. Needless to say, the United States was not the world power at the time. But Jefferson's action worked. It also established a precedent.
During the Reagan presidency, U.S. intelligence learned of Libyan diplomatic communications regarding a bomb that killed two people, including a U.S. soldier and injuring 230 others, in a West Berlin nightclub. President Reagan's reaction was to begin lobbing missiles at Libya, claiming it was self-defense. This action was taken 10 days after the bombing incident.
Following the Gulf War, when then-President George Herbert Walker Bush had expelled Saddam Hussein's Iraqi forces from Kuwait, the former president was invited to Kuwait to be honored. As he traveled there with his wife, former officials of his administration, and a contingent of Secret Service agents, the trip seemed uneventful. After the visit, it was learned that Kuwait forces had foiled an assassination attempt against the former president, arresting 16 Iraqi and Kuwaiti nationals involved in the plot.
President Clinton dispatched investigators who confirmed the Iraqi-sponsored plot. The day after receiving the report, President Clinton ordered warships in the Persian Gulf to fire missiles at the Mukhabarat, the Iraqi Intelligence Service, in downtown Baghdad, because the Mukhabarat was believed to have planned the effort to assassinate former President Bush. The strike was successful.
In 1998, U.S. embassies in Dar es Salaam and Nairobi were bombed, killing 258 people, including a U.S. ambassador and 11 Americans. Fourteen days later, President Clinton, acting on "the strongest evidence ever obtained in a major terrorist case," attacked Osama bin Laden's forces. U.S. warships fired cruise missiles at bin Laden's Afghan camp and a Sudanese chemical plant.
Each of these actions by presidents has generated debate about the legal authority for the actions undertaken. Notwithstanding the talk of unity in Washington following Black Tuesday's terrorist attack, congressional leaders, both Republicans and Democrats, have been reminding the president of their constitutional authority over war-making.
Post-Vietnam war powers
Presidential power has been tested and re-tested by Congress in the years following Vietnam. Although Congress talked of granting the president blanket authority to take such military action as he deems appropriate to deal with the most egregious terrorist attack in U.S. history, they did not do so. Rather, they gave him authority to respond against those responsible for the recent attack, not all terrorism.
This action was political -- and Washington power politics -- posturing. Congress knows that the U.S. people overwhelmingly support the president at this time, and want to take the action he feels appropriate. Congress has merely positioned itself to make it appear he is acting with powers they have legally authorized. In fact, the president does not need congressional authority to respond.
Since Vietnam, many scholars and politicians have taken the position that the president can only make war with the authority of Congress. They claim, accordingly, that the presidents, from George Washington to Bill Clinton, who have done otherwise have acted illegally.
Those who take this view cite Article I, section 8 of the Constitution, which provides that Congress shall have the power to declare war, and to raise and support military forces. But, in fact, this clause does not put the Congress in charge of counter-terrorism, which is an Executive function.
Arguing about the Constitution's division of authority
In a recent symposium addressing legal responses to international terrorism, reported in the Fall 1999 issue of "Houston Journal of International Law," Robert F. Turner -- a former legal adviser to the Senate Foreign Relations Committee and an experienced legal scholar and practitioner in the national security area -- addressed the president's constitutional powers to respond to terrorism. Professor Turner's analysis is particularly instructive given his five years as a national security adviser to the U.S. Senate.
Turner reminds those who question the president's powers to look at Article II, Section 1 of the Constitution, which vests "the executive Power É in a President of the United States." He notes that since John Locke penned his treatises on government, foreign affairs have been considered an executive function.
Turner adds, as well, that this was the interpretation given to Article II by James Madison (speaking as not only a member of the Constitutional Convention but during the first session of the First Congress), George Washington (acting as the first president), and Thomas Jefferson (supporting this conclusion as the first Secretary of State).
No declaration of war is necessary for the president to act against terrorists. "The right of the President to protect the nation against terrorist threats is constitutional rather than statutory in origin," Turner reports. Accordingly, he notes, the President power "may not be taken away by a simple statute like the War Powers Resolution, any more than Congress could, by statute, vitiate the pardon power."
Impact of international law on fighting terrorists
While a few scholars hold that international law is not binding on the president, and thus places no restriction on his actions, without entering that debate, suffice it to say that the overwhelming weight of authority holds that the United States is subject to international law - a reality recognized by the U.S. Supreme Court since 1815, when the case of The Nereide was decided.
Under the rules of international law, President Bush cannot unilaterally take retaliatory actions against the terrorists' acts. The use of military force as reprisal or punishment is prohibited.
However, international law does give states the right to respond to armed attacks in self-defense, and to engage in "anticipatory self-defense." There is no clear agreement, however, as to what is and is not permissible under these exceptions to the general prohibition against retaliatory force. This give the president considerable latitude.
Traditionally, presidents seek to build an international coalition through diplomatic efforts and then seek the authorization of the U. N. Security Council to use force. But as recently as 1998, President Clinton responded to the U.S. embassy bombings is Dar es Salaam and Nairobi by attacking Osama bin Laden's Afghan camp, thus taking unilateral action against this terrorist organization.
President Clinton claimed overwhelming evidence (although he refused to release it) of bin Laden's role; that bin Laden had been responsible for prior terrorist attacks against the United States; that there was "compelling information" he was planning further attacks; and that his organization was seeking to obtain or develop chemical weapons.
These facts established that the United States had acted within the bounds of international law, and under the self-defense exceptions.
It must be noted that the more time that passes between the incident and the military response, the less it appears to be self-defense. For this reason, when President Bush has evidence of who was responsible, he will likely respond sooner rather than later.
Can Bush 'take out' bin Laden?
According to most reports, Osama bin Laden was responsible for these recent attacks. Bin Laden and his compatriots already stand accused of prior terrorist attacks against the United States. For many, this raises a simple question: Why doesn't Bush just "take him out"?
Article 2 of the U.N. Charter, prohibiting the use of force in international affairs, has been viewed as precluding assassinations for political purposes. The U.S. Army's field manual, interpreting applicable international agreements, similarly prohibits "assassination, proscription, or outlawry of an enemy, or putting a price upon an enemy's head, as well as offering a reward for an enemy 'dead or alive.'" It does not, however, "preclude attacks on individual soldiers or officers of the enemy whether in the zone of hostilities, occupied territory, or elsewhere."
During the Nixon administration, the United States joined the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents. This is one of the few multinational agreements that addresses, and prohibits, assassination of foreign leaders. It is not clear, however, that bin Laden would be protected by this agreement:
"Presidents Ford, Carter and Reagan all issued Executive Orders precluding the use of assassinations, following the revelation of the Senate investigation into activities of prior Presidents. Reagan's Executive Order 12333 states that "[n]o person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination." That Executive Order was left standing by Presidents George Herbert Walker Bush and Clinton, remains the law."
Professor Turner addressed the question that is once again on the minds of many Americans, no doubt including President Bush. Turner found no legal restraint against "targeting of an individual terrorist or terrorist leader when necessary to neutralize an ongoing series of terrorist attacks, as long as peaceful remedies have been exhausted and alternative strategies would result in a greater loss of human life."
More specifically, Turner contends that:
"Killing someone like Osama bin Laden, who is engaged in an ongoing campaign of lethal violence against Americans, is an act of self-defense, not an act of murder, and since "assassination" is by definition a form of "murder," that issue is not raised by such a policy. Further, even were this not true, the prohibition against "assassination" in Executive Order 12333 is not a "law," but merely a Presidential pronouncement which may be repealed, modified, or suspended on an ad hoc basis by an incumbent President."
In short, if President Bush wants to take out bin Laden, it appears he is not restricted by any law from so doing.
Nor will Americans likely mourn his passing.
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