Did we start the post-9/11 frenzy of military activity legally? Did the President and subsequent leaders follow the constitution of the United States of America? To many Americans, these types of questions surrounding the terrorist attack on 9/11 and legality cause an audience to squirm and fidget. Understandably so, post-9/11 military activity appears to be held to much more scrutiny and confusion than previous campaigns. This essay, however, is going to attempt to rationalize, defend and attack three main focal points of presidential authority post-9/11. Firsthand, the removal of the Taliban government in Afghanistan was legal and warranted after the incident on 9/11. Indefinite detention of alleged combatants is not legal and is not supported in the Authorization for Use of Military Force (S.J.Res.23). The final focal point is not nearly as straightforward as the previous two points. Drone technology places the President and US at a cross-roads in definition and accountability that could end up being quite dangerous. This essay posits the use of drone technology in Pakistan is legal simply because it is not illegal. Before making any argument, understanding the dialogue on authority and the debate surrounding these questions must be highlighted.
Before tackling those big questions of legality and a post-9/11 world, we must define authority in the context that pertains to our focal points. Using the War Powers Resolution (WPR) of 1973 along with S.J.Res.23 given to the President post-9/11, we can draw up a rather technical look at authority. We can also conceptualize the dialogue surrounding use of authority. Admittedly so, it can get rather confusing to try and mentally grasp presidential authority. In summarizing the WPR Section 2 and 3, an attempt to simplify presidential authority can take place. Both the WPR and S.J.Res.23 build off the premise that hostilities, of which the Armed Forces of the US will respond to, need to be declared through Congress. The initial dialogue needs to follow with regular and expedient reporting and consultation. Consultation and further authorization is more explicitly directed by Congress when the President wants to escalate resources used towards any active hostility or when activities will begin in a new sovereign or non-state actor. However, congress should and will allow the President the benefit of the doubt at executing authorized force unilaterally (50 U.S.C. 1541–1548, 1973).
Authority defined through the WPR and S.J.Res.23, which refers back to the WPR, is not complicated or muddy in text. What has truly complicated the authority being passed between the President and Congress is the evolution of what traditional war is into a complicated hierarchy. Authors Bruce Ackerman and Oona Hathaway go to great length at defining ‘limited war’ versus ‘total war’ and the methods in which Congress must restrain presidential authority based off those classifications. There is no disagreement presented in this essay that refutes the ability of the Congress to define the level of engagement and appropriate authority vested in the President (Ackerman & Hathaway, 2011, pp. 458-463).
However, these types of questions are where lawyers burrow-in and create nuance and complexities in presidential authority. This essay loosely posits that these nuances might be warranted, but that our definition of ‘war’ should remain statically simple. Any expenditure of resources used in any hostility that the US Armed Forces are addressing should follow consistency with authorization and oversight being vested in both the President and Congress. Disregarding the definition of specific types of hostilities, or not ordering hostilities into a hierarchy, disallows the President of overusing their authority to execute use of force. As well, the Congress is able to authorize and define the level of authority in each case. This simplifies the WPR and arguably appears more in-line with a long standing sentiment of separating powers in the US. This will be the opinion moving forward into the three focal points of presidential authority.
Our main focal points will see a shift from examining the WPR to looking more closely at S.J.Res.23. The resolution becomes a powerful tool of authorization and confusion in post-9/11 hostilities. The President was authorized to overthrow the Taliban government in Afghanistan based off expressly communicated language in S.J.Res.23.
Section 2(a) of S.J.Res.23 states, 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. (S.J.Res.23, 2001)
This was a matter of self-defense as the attacks were not only on Americans, but on US soil. The government of Afghanistan, at the very least, harbored the organization that laid claim to the terrorist attacks on 9/11. As such, the President deemed the Afghanistan government responsible for harboring and aiding in the attacks on 9/11. The activities of the US Armed Forces in Afghanistan benefit from what might be argued as the only legitimate use of force since 9/11.
Detention of Combatants
The indefinite detention of combatants is where authorization begins to show signs of strain. The use of the term indefinite is highly suspect. Indefinite appears to be more of a punishment than a determent. The President does harm by disregarding both international law (IL) and domestic law that stresses the importance of judgment before punishment. Furthermore, indefinite could be misconstrued as to apply to containment even after hostilities have ceased. This again seems more akin to punishment than containment and deterrent. Both the WPR and more specifically S.J.Res.23 do not specifically mention the detention of combatants. The only language that seems to apply is authorization of actions against “acts that continue to pose and unusual and extraordinary threat” (S.R.Res.23, 2001). This is a terribly thin premise to base detaining indefinitely potential combatants. We often are not aware of if those combatants pose an unusual or extraordinary threat in the first place; we must find that out. Also, once hostilities are over, how do those detained continue to pose a threat – let alone unusually risky threat? Is this line of reasoning more indicative of a plan for perpetual hostilities? However, this is an idea for another day. We should base our opinions off the very simple notion that the detainment of potential or known threats should not fall outside of domestic law nor IL norms and customs.
Accelerated Drone Technology
This essay will not present a clear favor or disfavor of drone use in Pakistan. It is highly unfortunate that the dialogue and theoretic understandings within drone technology have not been sought, explained or rationalized in a public forum. However, not only in Pakistan are US drones a current threat. The use of drone technology being used against organizations in Pakistan is legal because it is not illegal. This is a very new precedent in warfare and one that should be examined in haste. Accountability appears to be thrown to the wind. The pilot is removed from combat, however, the destruction and method of delivery is not. Who is responsible for overstepping a mandate or for hitting the trigger two times instead of the ordered single fire? Where is the fundamental check on intelligence that is inherent in physically seeing a target before firing? Is this an appropriate, as directed by section 2(a) of S.J.Res.23, response to hostilities? With drone technology being acutely new there is too much still unanswered to determine if it falls under presidential authority or if Congress should authorize its use. The use of drones appears to within and outside of the definitions and authorities presented by Congress in S.J.Res.23.
The terrorist attacks on the US on 9/11 ushered in a new era of redefining the engagement of organized violence. The perpetrators were not typical combatants and the US response was not accurately portrayed or communicated. In a parallel development, the rise in drone technology at its application toward war create even more profound questions and dissent. The very rules of engagement and accountability can run amok in the use of drone attacks. Authorizing war, executing war, defining the scope of war and limit the methods allowed in war is a contested power struggle between the President and Congress. Constricting that definition clears away some of the outlying methods either party can use to obtain relative power. Using that constricted definition of war, this essay posits that overthrowing the Taliban post-9/11 was valid and in self-defense. However, the indefinite detainment of potential combatants does not appear to be within the scope of presidential authority. As well, the use of drones is argued as being highly misunderstood and as such is neither legal nor illegal. In other words, using drones in Pakistan is merely legal because it is not illegal.
Ackerman, B., & Hathaway, O. (2011). Limited War and the Constitution: Iraq and the Crisis of Presidential Legality. Michigan Law Review, 447-517.
Authorization for Use of Military Force, S.J. Res. 23, 107th Congress (2001)
Murphy, S. (2006). Principles of International Law (2nd ed., pp. 3-569).Thomson Reuters.
War Powers Resolution, H.J. Res. 542, 93rd Congress (1973)