01 Aug Opinio Juris Symposium: Can President Obama Attack Pakistan?
I have some more detailed thoughts on the postings by Professors Kent, Flaherty, and Ramsey but I did want to note one news item today that is actually relevant to the discussion between Professors Ramsey and Kent about the President’s ability to use military force to respond to attacks.
In a major national security address, presidential candidate Barack Obama called for the U.S. government to use military force against terrorists inside Pakistan if the current Pakistani government refuses to act to suppress them.
Would such attacks, without Pakistan’s permission, be legal under U.S. constitutional law?
As Professor Ramsey points out, this would probably be authorized by the September 11 Resolution, which allows military force against Al Qaeda. But if the September 11 Resolution did not apply for some reason (e.g. it is repealed), he suggests no responsive attack is permitted without Pakistan’s permission. (And I assume Professor Kent’s view is that even with Pakistan’s permission, no responsive attack is legal.)
Why would Pakistan’s permission make a difference though? Is it because of the President’s constitutional duty to “Take Care” of the “Laws”, which includes international law? But the customary international law governing the use of military force is notoriously murky and it seems like the President could claim that international law allows this sort of attack as preemptive self-defense, even without Pakistan’s permission. We can stretch the hypo beyond Pakistan and imagine a President Obama invading Darfur to stop the genocide, etc. etc. Would the President’s claim that stopping genocide allows the use of military force and the violation of another country sovereignty be acceptable?
Based on Professor Ramsey’s analysis in Chapter 18 of his book, the President cannot violate international law, but he is given wide discretion to interpret it. And courts are bound, in his view, to defer to executive interpretations absent contrary action by Congress. This seems right to me, but I wonder whether this leaves any room for judicial interpretations of international law in defiance of the executive’s interpretations?