Posted Saturday, May 3, 2008, at 4:09 PM
Well, Phil , two days out from the latest account of another U.S. missile strike in Somalia, and judging from the relative silence on the blogs, I take it pretty much everyone agrees with you that the president's authority for the strike falls within the "necessary and appropriate" force Congress intended in its September 2001 authorization to use military force (AUMF) against al-Qaida. Indeed, I'd bet that's what a U.S. court would have to say about it in the unlikely event it ever came up, even if it turned out this guy turned out not to be associated with al-Qaida after all. Not necessarily a happy picture, but I'm guessing where things stand under the current state of domestic law.
But that should hardly be the end of the discussion. Whatever force is "necessary and appropriate" is a troublingly vague notion for understanding the limits on what kind of power Congress actually wanted to delegate the president in a global campaign against the people, organizations, or groups who aided the attacks of 9/11. Most folks seemed to think the AUMF didn't extend to giving the president the authority to engage in domestic wiretapping without a warrant (contrary to the administration's suggestion). The Supreme Court bought that the AUMF did extend to cover some U.S. detention operations, at least to detain those picked up by U.S. military on the battlefield in Afghanistan. But until Congress gets a bit more specific, I'm guessing we'll be having this debate for a while (with the executive's position getting weaker the farther in time we get from 9/11).
In any case, the legality of the strike under the AUMF is only part of the question. There's also the pesky issue of whether it's a law-of-war problem to target an individual who, at the moment of attack at least, appears to have been minding his own business, far from any traditional field of "armed conflict." If we find out someone's been contributing money to an organization that turns out to be affiliated with an organization we've identified as terrorist, could we bomb them in their sleep at anytime, anywhere they are in the world? I've no beef with those who say concepts like "armed conflict" and "direct participation in hostilities" aren't the most clearly defined aspects of the law of war. But even if we give the administration the benefit of the doubt as operating within the "necessary and proper" boundaries of congressional authorization under U.S. law, what exactly is the limiting principle they have in mind under the law of war? And to take it a final step, if it's not quite legal under the law of war, can it really be part of the "appropriate" force Congress had in mind? At least some on the Supreme Court have recognized in recent cases that this kind of international law can and should inform the interpretation of statutory mandates in the area.
Marty, Diane —a ny enlightenment to shed?