Chapter 10 - Unilateral Self-Defense and Rescue
What are the three classic justifications for the use of unilateral power?
Does this extend to protecting citizens?
Why was there less restrictions on using force against pirates and aborigines?
Are pirates a better analogy for the war on terror than is general war?
What formality was required to respond to a general attack?
What about more limited attacks?
What formally ended the use of letters of marquee and reprisal?
Why should the response be different to a limited action like the killing of a
soldier, versus a general attack?
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)?
What did the White House say?
When did the White House notify Congress?
What was Daniel Webster's standard for self-defense without congressional
approval?
What is the problem of presidential provocation?
How can presidents provoke attacks within the legal confines of the WPR?
Durand v. Hollins United States Circuit Court, Southern District of New York,
8 F. Cas. 111 (1860)
Where did this take place?
What was the opposing force?
What did the mob do that precipitated sending in the troops?
What Captain Hollins sent to do?
What ended up happening?
Whose property was really being protected?
Who is bringing the lawsuit against whom?
What is the defense's position?
What question does this defense raise about presidential powers?
Where does the court find that the power to order this type of retaliation
resides?
What is the legal liability for such actions?
Iranian Hostage Crisis
Why did Secretary of State Vance oppose a rescue mission?
What dashed Carter's hopes for a negotiated settlement?
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?
Why did the United States Supreme Court decide that the Hostage Act did
not apply?
What presidential power was left out of the Hostage Act?
Do you think the president can do this anyway?
What does customary international law say about hostages?
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?
What are the limits on the actions of local Navy commanders who are on the
scene of attacks?
The 1998 Attacks on Sudan and Afghanistan
What precipitated these attacks?
What was our response?
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). Pub. L. No. 104-132, 110 Stat. 1255 (1996) say that was used to
justify these attacks?
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?
What is the agreement that the WPR does not apply to 9/11 terrorist targets?
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?
Is there a provision of the United Nations Charter that might shelter
assassinations?
Would Executive Order 12,333 ban killing al Qaeda members?
Why or why not?
Who about their bankers?
When should we use assignation?
How do you get around Executive Order 12,333?
Can this be done secretly?
Chapter 11 - Collective Self-Defense
What did the world's nations promise in Article 2(4) of the U.N. Charter?
What was the League of Nations?
How well did it work?
What is the political history of the UN?
How was it regarded by conservatives before the Gulf War?
Review the Articles
What would an Article 43 agreement create?
Why has there never been an Article 43 agreement?
How does this constrain UN peace-keeping actions?
How does Article 51 allow collective self-defense outside of UN control?
Why doesn't the UN Charter ban anything but UN-mediated actions?
What does the UN have to do restore its authority?
What is the sequence of actions that leads to a UN Resolution authorizing force?
How does the voting work on the Security Council?
How is the membership determined?
How does this act as a brake on the UN Resolutions interfering with US
sovereignty?
When was the United Nations Participation Act passed?
What does the United Nations Participation Act direct the president to do?
What is the limitation on presidential action under Article 43?
What is the President allowed to do under Article 42 without consulting with
Congress?
What about non-military aid?
Can Congress cut off funding for troops loaned to the UN?
Is this any different from other troop actions?
What if the UN comes up with money to support them?
What if the President comes up with money to support them when he wants to
act without congressional mandate?
Are UN actions like Korea and the Gulf War, wars?
What is a police action?
Does this have any meaning in customary international law?
What about as regards congressional powers?
Could Congress also declare war in a UN Action?
What would this mean?
First Gulf War
What made Iraq our ally in the 1980s?
Why do some folks think this played into the invasion of Kuwait?
How did the invasion of Kuwait affect the US?
How many troops did Iraq put in Kuwait?
How big is Kuwait?
What did we think was the real threat?
What did Resolution 660 say?
Resolution 661?
What did Bush I do?
Why did he not need congressional permission for this?
Did Bush I comply with the WPR?
Was there a joint resolution supporting the buildup?
What did the appropriations bills say?
What did Resolution 678 provide?
What did Bush I say about asking Congress for permission to invade
Kuwait?
What did he ask for and why?
Did he get the resolution?
What was the vote?
What did it require he show before moving on Iraq?
When did he tell Congress this was satisfied, and what came next?
In retrospect, did Bush I do what he should have done to authorize the war?
Did Bush II do as much?
Did his resolution get more votes?
Stay tuned for the next chapter
Chapter 12 - Preemptive War
The key is the timeline leading from the first Gulf War to the Invasion of Iraq in
the second Gulf War. Figure out what we knew and when, what did Congress
approve, what did they base the approval on, and what powers the president
used.
Look in particular at whether the president already had arguable authority to go
to war left from the UN Resolutions and Congressional resolutions from the first
Gulf War.
What is the theory of preemptive war?
Why was the Iraq war a preemptive war?
What if you are wrong in your assumptions about the justification for a
preemptive war?
Would the October 16, 2002, resolution pass the adlaw test of setting out
intelligible principles to guide the executive?
Does it matter whether it does?
Will a court review it?
How much does the resolution depends on WMDs?
Does being wrong about WMDs make the resolution invalid as a basis for war?
What did Massachusetts v. Laird, 451 F.2d 26 (1st Cir. 1971), tell us about what
Congress would need to do to present a judicially reviewable issue?
What would it take to get past the appropriations safety valve for such review?
What are the Congressional Options for an end to the Iraq War?
Remember Holtzman v. Schlesinger, 484 F.2d 1307 (1973)