EXAMINING THE PRESIDENT'S POWERS TO FIGHT TERRORISM

By JOHN DEAN
Friday, Sep. 14, 2001

Untold thousands of Americans have been killed by unidentified terrorists on American soil. A veiled enemy has declared war on our nation and our way of life. Understandably, the American people look to one person for answers and action: The President of the United States. What can he do? What should he do?

These are not hypothetical questions. This is real life. How they are answered will affect every American.

There is no single or simple definition of terrorism in our laws. Rather, the well-understood term — plainly defined by Webster's dictionary as "the use of violence and threats to intimidate or coerce, esp. for political purposes; and the state of fear and submission so produced" — has been made unduly complex by lawyers and bureaucrats.

For example, the FBI, which will be the lead federal agency investigating the terrorism activities of September 11, has its own definition, which differs from the definition in Title 18 of the U.S. Code, which in turns differs from the definition in Title 22 of the U.S. Code. Unfortunately, all the legal definitions ignore the objective of the terrorist's violence. Terrorism is about creating fear.

One commentator, recalling a Chinese proverb, explains that the purpose of terrorism is "to kill one and frighten 10,000." In short, terrorists succeed when they create fear. Thus, a priority of the President, seeking to defeat the terrorists who have attacked the United States, must be to lessen the fear.

Actions To Alleviate Fear

Recent presidents have addressed the nation's fear in the wake of terrorist activities with quick fix remedies. For example, following the downing of Pan Am Flight 103 over Lockerbie, Scotland, President George H. W. Bush created a Commission on Aviation Security and Terrorism. Implementing the recommendations of this Commission, Congress wrote a new law that required the FAA to adopt new security technology. That helped, for it reduced fear. But it was a band-aid.

Similarly, following the mid-air explosion of TWA Flight 800, which was initially believed to have been the work of terrorists, President Clinton created another commission, which his vice president headed. At the president's request, the Gore Commission made recommendations within 45 days. This study, and a new anti-terrorism law enacted by Congress, helped reduce fears. But the proposed law was almost toothless by the time it reached the president's desk, and the Gore Commission recommendations have been largely ignored.

Following the bombing of the Murrah Federal Building in Oklahoma City, President Clinton had one of the finest moments of his presidency when he spoke to the family and friends of the 168 killed by the terrorist bomb, and spoke to the nation as well, with heartfelt words. He was a president who felt America's pain, and the nation knew it. It helped, as did the quick arrest of Timothy McVeigh and his accomplices.

The hijacking of the four commercial airlines, the kamikaze attacks on the Twin Towers in Manhattan, and the dive-bombing of the Pentagon have given Americans a good reason to be fearful. Eighteen terrorists breached security at three of the country's busiest airports, and killed possibly 10,000 Americans (if not more). Calling for another commission or study or more new laws is not going to give anyone comfort. Nor will words alone do so.

The Need for Decisive Action

President Bush must take decisive action. And quickly. Otherwise the trepidation will only fester, and grow. Then the terrorists win. So also will the terrorists win if the President, and Congress, overreact. Should Americans lose their freedom either because of fear, or because the government clamps down too hard on its citizens to prevent further similar, if not more devastating acts, the terrorists would win.

Finding the right response will test this president, and his advisers, as no other issue of his presidency has. While the world has become a more complex place, history offers the president some guidance. Our nation has been confronted with terrorism throughout its history. There are examples of what has worked, and what has not.

Historical Examples Of Actions By Prior Presidents

From the founding of the nation to the presidency of the current president's father, terrorism has been dealt with swiftly and resolutely by our presidents. A few examples of past and more recent actions suffice to make the point.

Samuel E. Morison's Oxford History of the American People tells us that Thomas Jefferson, in one of his first acts as President, took a preemptive action to destroy the "Barbary Pirates" based in Tripoli. Rather than let the pirates attack our merchant ships, Jefferson sent the Navy into another nation's harbor to protect American vessels. Needless to say, the United States was not the world power then that it is today. But Jefferson's action worked. It also established a precedent.

During the Reagan presidency, U.S. intelligence learned of Libyan diplomatic communications regarding a bomb that killed two people, including an American soldier and injuring 230 others, in a West Berlin nightclub. President Reagan's reaction was to begin lobbing missiles at Libya, claiming it was self-defense. This action was taken ten days after the bombing incident.

Following the Gulf War, when then-President George Herbert Walker Bush had expelled Saddam Hussein's Iraqi forces from Kuwait, the former President was invited to Kuwait to be honored. As he traveled there with his wife, former officials of his administration, and a contingent of Secret Service agents, the trip seemed uneventful. The former President was awarded Kuwait's highest honor, spoke to their parliament, visited battle sites and reviewed American troops. But after the visit, it was learned that Kuwait forces had foiled an assassination attempt against the former President, arresting 16 Iraqi and Kuwaiti nationals who had been involved in the plot.

President Clinton dispatched Secret Service, FBI and CIA investigators who confirmed the Iraqi-sponsored plot. The day after receiving the report, June 26, 1993, the President ordered warships in the Persian Gulf to fire missiles at the Mukhabarat, the Iraqi Intelligence Service, in downtown Baghdad, because the Mukhabarat was believed to have planned the effort to assassinate former President Bush. The strike was successful.

In 1998, U.S. embassies in Dar es Salanni and Nairobi were bombed, killing 258 people, including a U.S. Ambassador and eleven Americans. Fourteen days later, President Clinton, acting on "the strongest evidence ever obtained in a major terrorist case," attacked Osama bin Laden's forces. U.S. warships fired cruise missiles at bin Laden's Afghan camp and a Sudanese chemical plant.

And notwithstanding the talk of unity in Washington following this latest terrorist attack, Congressional leaders, both Republicans and Democrats, have been reminding the President of their Constitutional authority over war-making. This power of the President has been tested and re-tested by Congress in the years following Vietnam.

Post-Vietnam Presidential War Powers

As I write this, Congress is discussing actions that would grant the President blanket authority to take such military action as he deems appropriate to deal with the most egregious terrorist attack in American history. In fact, this is political — and Washington power politics — posturing. Congress well knows that the American people are going to overwhelmingly support the President's actions, so its members are merely positioning themselves to make it appear he is acting with powers they have legally authorized. In fact, the President does not need Congressional authority to respond.

Since Vietnam, many scholars and politicians have taken the position that the President can only make war with the authority of Congress. They claim, accordingly, that the Presidents, from George Washington to Bill Clinton, who have done otherwise have acted illegally.

Those who take this view cite Article I, section 8 of the Constitution, which provides that Congress shall have the power to declare war, and to raise and support military forces. But, in fact, this clause does not put the Congress in charge of counter-terrorism, which is an Executive function.

Arguing About the Constitution's Division of Authority

In a recent symposium addressing legal responses to international terrorism, reported in the Fall 1999 Houston Journal of International Law, Robert F. Turner — a former legal adviser to the Senate Foreign Relations Committee and an experienced legal scholar and practitioner in the national security area — addressed the President's constitutional powers to respond to terrorism. Professor Turner's analysis is particularly instructive given his five years as a national security adviser to the U.S. Senate.

Turner reminds those who question the President's powers to look at Article II, Section 1 of the Constitution, which vests "the executive Power … in a President of the United States." He notes that since John Locke penned his treatises on government, foreign affairs have been considered an executive function.

Turner adds, as well, that this was the interpretation given to Article II by James Madison (speaking as not only a member of the Constitutional Convention but during the first session of the First Congress), George Washington (acting as the first President), and Thomas Jefferson (supporting this conclusion as the first Secretary of State).

Congress does, however, have the power of the purse. While Congress cannot put strings on the money it authorizes, its power to fund is a significant power nonetheless. This power, together with the nature of the undertaking and the need to project a unified front, dictate that "a wise President" will consult with Congress and seek a bipartisan approach.

While we don't know how President Bush will respond — which is, after all, consistent with the need for secrecy in this situation — it appears he is, indeed, consulting with Congress. Yet as all his predecessors realized, when it gets down to how, when and where to respond, the President can do whatever he feels necessary — whether Congress agrees or disagrees. Article II, Section 1 has vested him with that power.

Impact Of International Law On Fighting Terrorists

If the President is free to act from a domestic standpoint, what about from the standpoint of international law?

To begin, there is a debate in the country as to whether or not international law is binding on the President, dictating what he can and cannot do. Without opening that debate here, suffice it to say that the overwhelming weight of authority says that the United States is subject to international law — a reality recognized by the U.S. Supreme Court since 1815, when the case of The Nereide was decided.

Under the rules of international law, President Bush cannot unilaterally take retaliatory actions against the terrorists' acts. The use of military force as reprisal or punishment is prohibited.

However, international law does give states the right to respond to armed attacks in self-defense, and to engage in "anticipatory self-defense." As with most areas of law, there is no clear agreement as to what is and is not permissible under these exceptions to the general prohibition against retaliatory force.

Traditionally, Presidents both seek to build an international coalition through diplomatic efforts and then seek the authorization of the U. N. Security Council to use force. But as recently as 1998, President Clinton responded to the U.S. embassy bombings is Dar es Salaam and Nairobi by attacking Osama bin Laden's Afghan camp, thus taking unilateral action against this terrorist organization.

Great care, however, was taken to justify the President's actions. President Clinton explained that he had overwhelming evidence (although he refused to say what that evidence was) of bin Laden's role; that bin Laden had been responsible for prior terrorist attacks against the United States; that there was "compelling information" he was planning further attacks; and that his organization was seeking to obtain or develop chemical weapons. These facts were provided to establish that the United States was undertaking its attack within the bounds of international law, and under the self-defense exceptions.

Can Bush "Take Out" Osama bin Laden?

According to the New York Times, once again Osama bin Laden is the leading suspect in Tuesday's attacks. The man, and his compatriots, already stands accused of prior terrorist attacks against the United States.

For many, that raises a simple question: Why doesn't Bush just "take him out"? It is a much discussed question if my telephone calls are any indication of what is on the minds of many. And it is not an unreasonable question, given the circumstances.

Article 2 of the U.N. Charter, prohibiting the use of force in international affairs, has been viewed as precluding assassinations for political purposes. The U.S. Army's field manual, interpreting applicable international agreements, similarly 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.'" It does not, however, "preclude attacks on individual soldiers or officers of the enemy whether in the zone of hostilities, occupied territory, or elsewhere."

During the Nixon administration, the United States became a signatory to the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents. This is one of the few multinational agreements that addresses, and prohibits, assassination of foreign leaders. It is not clear, however, that bin Laden would be protected by this agreement.

Presidents Ford, Carter and Reagan all issued Executive Orders precluding the use of assassinations, following the revelation of the Senate investigation into activities of prior Presidents. Reagan's Executive Order 12333 states that "[n]o person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination." That Executive Order was left standing by Presidents George Herbert Walker Bush and Clinton. Thus, it currently remains the law.

Personally, I was struck to find that Professor Turner had earlier addressed the question that once again is on the minds of many Americans, no doubt including President Bush. Turner found no legal restraint against "targeting of an individual terrorist or terrorist leader when necessary to neutralize an ongoing series of terrorist attacks, as long as peaceful remedies have been exhausted and alternative strategies would result in a greater loss of human life."

More specifically, Turner contends that:

Killing someone like Osama bin Laden, who is engaged in an ongoing campaign of lethal violence against Americans, is an act of self-defense, not an act of murder, and since "assassination" is by definition a form of "murder," that issue is not raised by such a policy. Further, even were this not true, the prohibition against "assassination" in Executive Order 12333 is not a "law," but merely a Presidential pronouncement which may be repealed, modified, or suspended on an ad hoc basis by an incumbent President.

Nor will Americans likely mourn his passing.


John W. Dean, a FindLaw columnist, previously served as Counsel to the President.

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