“To Prevent and Deter” International Terrorism

1. “To Prevent and Deter” International Terrorism • The U.S. Response to the Kenya and Tanzania Embassy Bombings

2. Letter from President Clinton to the Congressional Leadership • “. . . At my direction, U.S. forces conducted strikes against . . . The Usama bin Laden organization. . . Based on convincing information from a variety of reliable sources that . . . Bin Laden . . . Is responsible for [the Kenya and Tanzania embassy bombings].”

3. Clinton letter (cont.) • “The United States acted in exercise of our inherent right of self-defense consistent with Article 51 of the United Nations Charter. These strikes were a necessary and proportionate response to the imminent threat of further terrorist attacks against U.S. personnel and facilities.”

4. Clinton letter (cont.) • “These strikes were intended to prevent and deter additional attacks by a clearly identified terrorist threat.” • “I directed these actions pursuant to my constitutional authority to conduct U.S. foreign relations and as Commander in Chief and Chief Executive. I am providing this report . . .consistent with the War Powers Resolution.”

5. Case Themes • 1. The decision process. Do the benefits of small group decision making during a crisis outweigh the costs? Does the process followed in August 1998 building up to the cruise missile strikes supply lessons for future decision making?

6. 2. Authority for the operation. What are the domestic and international legal considerations in deciding whether and how to respond to acts of international terrorism? Must Congress be involved? What discretion does the Commander in Chief have to act on his own?

7. 3. Utility of the use of force. Does the use of force as an instrument of counter terrorism policy pay off? Can the war against terrorism be won through military means?

8. United Nations Charter • Article 2 (4) states: “All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.”

9. United Nations Charter (cont.) Article 51 states: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.”

10. Daniel Webster on self-defense • Secretary of State Daniel Webster argued that, under the law of nations, a valid plea of self-defense must rest on a showing of “a necessity of self-defense, instant, overwhelming, leaving no choice of means, no moment for deliberation.” • Does Webster’s standard make sense today?

11. A More Permissive Regime? Abe Sofaer has argued that “self-defense allows a proportionate response to every use of force, and that allowing terrorist groups to use sovereign territory renders that state complicit and subject to attack. In addition, defensive measures may be taken to preempt attacks, where essential to deterrence.”

12. Customary International Law • Professor Viet Dinh, Georgetown: “It is part of international law to deter and punish violations of international law by force, if necessary. This act falls squarely in the self-defense category.”

13. How may a military reprisal be justified, consistent with the U.N. Charter? • The actions must be taken to further “individual . . . self-defense.” • The actions must be intended to end a course of continuing conduct threatening to the nation, relying on the doctrine of self-defense • The actions may not be intended to “get even”

14. Getting Even vs. Self-Defense • What distinguishes lawful from unlawful military retaliation for a terrorist attack on the U.S.? • Combine Articles 2 and 51, UN Charter • Examine the “repel” power and “marque and reprisal” clause • Determine the criteria for lawful self-defense

15. Was the August 1998 strike lawful? • If we have to wait for a terrorist attack to defend against it, defense will come too late most of the time because such attacks are planned secretly and as a surprise. • Yet, if we cast off the anchor of imminence as a legal requirement, what limits the president’s discretion to order the use of force? (Why not ask Congress for authority if there is time?)

16. Was It Lawful? (cont.) • How much proof should be required of sponsorship before retaliation is ordered in self-defense? • Could a state that was helpless to prevent its territory being used be attacked? • What about a state that merely tolerated the presence of the terrorist group?

17. International law requirements for a military response: • Peaceful redress will not accomplish necessary objectives. • The response must be proportionate to the threat it addresses. • The military response must impose minimal collateral damage in carrying out its objectives.

18. Bombing “Sanctuaries”: Anticipatory Self-Defense or Reprisal? • The U.S. Raid on Libya (1986), following the terrorist bombing of a Berlin night-club, killing a U.S. soldier and wounding 64 other Americans. • Fortuitous hard evidence linking Libyan People’s Bureau in East Berlin to the bombing.

19. Some members of Congress expressed the view that the War Powers Resolution applied to any planned military response to the terrorist bombing. • Senator Hatfield wrote to President Reagan that “the President has a Constitutional responsibility to consult with Congress in advance of any action.”

20. On April 14, 18 U.S. F-111s dropped bombs on Libyan coastal targets, terrorist training facilities, and Quadhafi’s residential compound. • State Department Legal Adviser Abraham Sofaer defended the operation, stating that “U.S. forces undertook military action in self-defense against five terrorist-related targets in order to prevent and deter Libya’s unlawful aggression through terrorist force against the United States.”

21. Consulting Congress • The Administration argued that the “need for swiftness and secrecy” justified delaying notice to congressional leaders until one or two hours before the bombing. • Was there “consultation” within the meaning of the WPR?

22. Holy War? • Colonel Quadhafi advocated a “people’s war” against the United States: “We must force America to fight on one hundred fronts all over the earth . . . All Libyans must take up guns, bombs, and with their guns and bombs they will teach a lesson to America.” • Did this rhetoric, along with the Berlin bombing, place the U.S. in a de fact state of war with Libya?

23. The Scope of De Facto War • If the U.S. was de fact at war with Libya, could President Reagan have ordered the carpet bombing of Tripoli in conduct of that war? • Do Quadhafi’s threats, combined with the Berlin bombing, permit viewing the U.S. raid as anticipatory self-defense – repelling a reasonably anticipated attack?

24. The Attempted Assassination of Former President Bush • Former President Bush made a planned visit to Kuwait. • Would-be assassins were discovered, apprehended, tried, and executed. Strong evidence linking the operatives to Iraq. • June 1993 missile raid on Iraqi Intelligence Service Headquarters in Baghdad. • Was it self-defense or a reprisal?

25. Navy Regulations on Self-Defense • The right of self-defense “must be exercised only as a last resort, and then only to the extent which is absolutely necessary to accomplish the end required. . . . Force must never be used with a view to inflicting punishment for acts already committed.” • U.S. Navy Regulations art. 0915 • Did the Libyan or Iraqi raid violate the regs?

26. Joint Chiefs of Staff Standing Rules of Engagement • “A commander has the authority and obligation to use all necessary means available and to take all appropriate action to defend that commander’s unit and other US forces in the vicinity from a hostile act or demonstrated hostile intent.”

27. SROE Elements of Self-Defense • (1) Necessity. A hostile act occurs or a force or terrorist unit exhibits hostile intent. • (2) Proportionality. The force used must be reasonable in intensity, duration, and magnitude, based on all facts known to the commander at the time, to decisively counter the hostile act or hostile intent and to ensure the continued safety of US forces.

28. The September 11 Attacks • Fast-forward to 2001. The statutory authorization for military force against those responsible for the September 11 attacks included this clause: “Whereas the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States.” What is the scope of that authority?

29. Does it include an attack on bin Laden and his network without prior congressional authorization? • Would it matter whether he was in Afghanistan or Saudi Arabia? • What about a tactical nuclear attack against caves in Afghanistan where he was said to be hiding?

30. Evidentiary Standard for the 2001 Military Campaign in Afghanistan? • What standard should be applied? • Congress considered and rejected requiring a certification from the President before using force that there was specific and credible evidence that the target was responsible for 9/11. • Should the U.S. release the evidence it has?

31. Killing bin Laden: Anticipatory Self-Defense or Assassination? • Assassination generally is regarded as an act of murder for political reasons, usually through covert means • Peacetime assassination is unlawful, with or without an executive order proscribing it. • In wartime the military may kill the enemy, whether lawful combatants or unprivileged belligerents, including civilians who take part in hostilities.

32. U.S. Army Field Manual 27-10, paragraph 31 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’. . . “

33. Executive Order 12,333 (1981) • § 2.11 “No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.”

34. International law (the UN Charter) and U.S. law recognize the inherent right of self-defense, including the unilateral action against an imminent threat. • Self-defense may permit targeting a terrorist leader where their actions pose a continuing threat to U.S. citizens or or the national security of the United States.

35. After September 11, President Bush called for the capture of bin Laden “dead or alive.” Could he legally order the killing of bin Laden? • H.R. 19, introduced by Rep. Barr: Section 2.11 of Exec. Order 12,333 “shall have no further force or effect.” Is such a law necessary to permit strikes at a terrorist leader?

36. Testimony at the 2001 trial in NYC • 1. An active chemical weapons production program was ongoing in Khartoum in 1993 or 1994, in an area only a few km from the Al Shifa site. • 2. The cruise missiles may have just missed their target, or may have been on target. • 3. The testimony supports 1998 intel linking Al Qaeda, Sudan, and a WMD program.

37. Wall Street Journal • 1. December 2001 and August 2002 articles claim that, after UBL and Al Qaeda took refuge in Afghanistan in 1996, the Taliban government grew increasingly uncomfortable with the presence of these “arrogant, publicity-seeking and disrespectful” revolutionaries in their country.

38. 2. By 1998, the Taliban had agreed to a proposal from Saudi Arabia that UBL be handed over to the Saudis so he could be put on trial in Saudi Arabia for treason, a crime punishable by death.

39. 3. The secret deal fell apart when the U.S. fired cruise missiles into Afghanistan and Sudan in August 1998, leaving UBL safe and more secure inside Afghanistan. • 4. Implications?

40. The National Security Strategy of the United States (9/20/02) • Traditional concepts of deterrence will not work against . . . [terrorism] • We must adapt the concept of imminent threat to the capabilities and objectives of today’s adversaries . . [terrorism and WMD] • The U.S. has long maintained the option of preemptive actions to counter a sufficient threat to our national security . . .

41. The greater the threat, the greater is the risk of inaction – and more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy’s attack. To forestall or prevent such hostile acts by our adversaries, the U.S. will, if necessary, act preemptively.

42. The purpose of our actions will be to eliminate a specific threat to the United States or our allies and friends. The reasons for our actions will be clear, the force measured, and the cause just.