The U.S. Can “Drone” the Benghazi Perpetrators, Even If They Are Not Linked to Al Qaeda

by Julian Ku

Kevin and I have still never met in person, but we’ve already had our first twitter encounter last week on the legality of a U.S. military response to the attacks that killed the U.S. Ambassador in Libya (as well as three other Americans).  Although the news reports on the attacks are not exactly clear, some have suggested that there is no Al Qaeda link to the groups behind the Benghazi attacks.  This does suggest a new wrinkle to the legal analysis of any U.S. military response.

First, under domestic American constitutional law, I stick with my view that the President has the constitutional authority to order military strikes against those responsible for the attacks, even without congressional authorization.  There is ample legal precedent in U.S. history for these sorts of unilateral executive strikes, and it is certainly fits within the text of the Constitution’s Commander in Chief clause. I know, I know, there is a view that even this kind of targeted strike would require congressional authorization, but I don’t think past practice has conformed to this view. I do recognize that past precedents can be distinguished, but there sure are a lot of them.

For instance, in addition to Durand v. Hollins, there are more recent examples of President Reagan’s unilateral strike on Tripoli in 1986 in response to a terrorist bombing in Berlin, President Clinton’s unilateral strike on Baghdad in 1993 in response to an attempt to assassinate former President Bush, and President’s Clinton’s unilateral strike on Afghanistan and Sudan in 1998 (discussed by the Office of Legal Counsel here).  That last one was taken, in part, as a retaliation for Al Qaeda’s bombing of U.S. embassies that year. I think a strike against those responsible for the Benghazi attack, therefore, could easily pass U.S. constitutional muster.

Second, the question is much trickier under international law.  Under international law, “reprisals” are defined as illegal acts by states that are taken in response to illegal acts by other states. Such reprisals are highly disfavored, as the arbitration panel’s decision in Naulilaa suggests. Reprisals or punitive attacks targeting civilians or civilian property is particularly prohibited by international humanitarian law (Protocol I to the Geneva Conventions).  But it is actually not clear how much the U.S. is bound to these bodies of law, since it has not ratified Protocol I.  Still, I doubt U.S. law would permit an attack against civilians that would be otherwise illegal simply as a reprisal.

I think that the U.S. response would actually seek to target the actual perpetrators, in a targeted killing or Bin-laden style capture/kill mission.  This would likely avoid the problem of Protocol I (since it would not target civilians) but still encounter the problem of Article 51 of the U.N. Charter.  The U.S. would likely style this attack as an act of self-defense.  There is obviously a lot of disagreement as to whether such an attack would satisfy Article 51, but I will just say here that (obviously) the U.S. already takes the view that targeted killings against non-state actors that have, or are planning to, carry out attacks on U.S. persons or property could be justified as an act of self-defense.

I am guessing that President Obama has already received the legal greenlight to carry out an attack on the Benghazi attackers, and he may have even authorized an attack already.  Or he may have decided the intelligence is not good enough, or the policy consequences will be too negative. I leave that judgment to him and his advisers.  But I hope he is not influenced by the limits of constitutional or international law.  Neither should pose much of an obstacle to military action.

http://opiniojuris.org/2012/10/22/the-u-s-can-drone-the-benghazi-perpetrators-even-if-they-are-not-linked-to-al-qaeda/

4 Responses

  1. “But I hope he is not influenced by the limits of constitutional or international law.  Neither should pose much of an obstacle to military action.”  That seems a bit extreme.  IHL and the law of self-defense are not there for the purpose of protecting terrorists from consequences.  States, including the US, created those regimes because they provided benefits to those same states.  Actions which undermine those two regimes have real consequences that undermine our long term interests.

  2. “I hope he is not influenced by the limits of constitutional or international law. Neither should pose much of an obstacle to military action.”

    Are you suggesting that there are limits that the President should ignore?

  3. Clearly, the President is unavoidably bound under the Constitution to faithfully execute the Laws and such Laws have invluded treaty-based and customary international law.  U.S. Const., art. II, sec. 3; http://ssrn.com/abstract=1485703   Clearly also, the President’s authority to faithfully execute the Laws includes authority to execute the right of the United States under Article 51 of the U.N. Charter to engage in responsive measures of self-defense.  E.g., http://ssrn.com/abstract=2061835 –and, yes, the U.S. claim of self-defense would be appropriate — http://ssrn.com/abstract=2165278 ; http://ssrn.com/abstract=1718548 , etc.

  4. “that (obviously) the U.S. already takes the view that targeted killings against non-state actors that have, or are planning to, carry out attacks on U.S. persons or property could be justified as an act of self-defense.” (emphasis added)

    Is there some statement from USG officials that supports the view that self-defence authroises targeted killings purely on the basis of ‘have’ carried out an attack? Wouldn’t it be the case that the past acts are used to inform the intelligence picture and analysis of further/ongoing attack but a past attack simpliciter is not enough?

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