National Security Law

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?

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?

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?