“Unleash the Dogs of War” or at least Unleash the AUMF in Libya

by Julian Ku

The Obama Administration appears to have shifted its views on the nature of the September 11, 2012 attack on the U.S. consulate in Libya that resulted in the death of four Americans, including U.S. Ambassador Christopher Stevens.  Rather than blaming the attack on a “spontaneous” reaction to the offensive US film (which U.S. Ambassador to the U.N. Susan Rice seemed to argue on Sunday), the U.S. government is now calling this a “terrorist attack“.  Other news reports suggest the U.S. had intelligence warnings of an attack and the Libyan government is blaming Al Qaeda-affiliated groups.

If the U.S. government has credible intelligence that the attacks was carried out by Al Qaeda affiliated groups, President Obama can draw upon the September 11 Authorization for the Use of Military Force to respond to the attack with military force.

(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

I had earlier suggested that the President could do so anyway, as a retaliation for an attack on American soil and on U.S. diplomats. Others have pointed out that such a response might be further bolstered under the international law of self defence (UN Charter Article 51).  Given the widespread attacks on U.S. missions and embassies throughout the Middle East, it is worth keeping this authority in mind.  But if that authority was insufficient, an Al Qaeda link should (if established) offer an additional source of legal authority for U.S. military force in Libya.

To be sure, it might be unwise to use military force in this case, since Libya is (sort of) an ally of the U.S. in this case.  But it is worth noting that there seems to be ample constitutional legal authority for U.S. military retaliation for the Libya attack.

http://opiniojuris.org/2012/09/20/unleash-the-dogs-of-war-or-at-least-unleash-the-aumf-in-libya/

One Response

  1. Response…the AUMF is phrased in the past tense, so the relevant terrorist organization would have had to have aided, harbored, etc. re: the actual 9/11 attacks or actual attackers.
    The President doesn’t need the AUMF to engage in permissible self-defense targetings and the War Powers Resolution dose not stand in the way  see 26 Emory Int’l L. Rev. 43 (2012). 

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