September 18, 2001


"The Best Weapon: Article I" -- A Commentary by Prof. Harold Hongju Koh

"The Best Weapon: Article I"

By Harold Hongju Koh, Gerard C. and Bernice Latrobe Smith Professor of International Law

(This article originally appeared in the September 16, 2001, edition of the "Hartford Courant.")

Congress is considering legislation to authorize the president to use force against those responsible for the attacks upon the Pentagon and World Trade Center. Some members have called for a formal declaration of war, issued only four times in our history. Others seek a law that would give the president full authority to attack and even occupy countries that sponsor terrorism. Still others are calling for the president to repeal a quarter-century-old executive order that, for five administrations, has forbidden the United States from carrying out assassinations abroad.

The most likely solution will be broad legislation, passed unanimously by the Senate on Friday, modeled on the 1991 resolution that authorized then-President Bush to use force against Iraq in the Gulf War. The new bill gives the president unfettered discretion, without time limit, "to use all necessary and appropriate force against those nations, organizations, or persons" (whether foreign or domestic) so long as he determines that they "planned, authorized, committed or aided" the Sept. 11 attacks.

But what is to prevent such an open-ended law from becoming a blank check, like the infamous Gulf of Tonkin Resolution of 1964, which several presidents construed as unfettered congressional authorization to escalate the undeclared Vietnam War? The president will want - and should have - the option of military force to eradicate terrorist networks and to deter their state sponsors. But if, as former National Security Adviser Sandy Berger reported last week, Osama bin Laden has up to 10,000 operatives who function in 60 countries, do we really want to go to war against all, or even most, of those nations?

Congress should pass a bill giving the president specific legal authority to fight the perpetrators of the Sept. 11 tragedy. That authority should be flexible enough to deal with this evolving crisis, yet nuanced enough not to inadvertently authorize World War III.

That statute should recognize that we have been here before, at the founding of the Republic. At that time, pirates, privateers and other early terrorists posed as great a threat to our nation as sovereign states bent on war. Article I of the U.S. Constitution, which authorizes Congress to declare war, also gave Congress the much narrower power to "define and punish Piracies, Felonies committed on the High Seas, and Offenses against the Law of Nations."

The Framers drafted the language specifically to deal with situations like today's: where private actors--pirates and slave traders--work in tandem with sovereign governments to terrorize the civilized countries of the world. In 1790, Congress exercised this power by passing statutes criminalizing such international crimes as piracy and assaults upon ambassadors. Several decades later, Congress supported President Jefferson in authorizing the Navy to retaliate against the Barbary pirates.

In the past few decades, Congress has used this power to criminalize such offenses against "the Law of Nations" as attacks against aviation and diplomats, hostage-taking and theft of nuclear materials. Congress should again invoke its specific constitutional power over "the Law of Nations" to define the Pentagon and World Trade Center attacks as international crimes, and to authorize the president to use all necessary means to punish the perpetrators.

Such legislation would have at least four advantages over a broad invocation of the constitutional war powers:
-It would authorize the president to deal with this tragic situation without acting like a modern-day Gulf of Tonkin resolution, which could be misconstrued to authorize global war against scores of alleged host or sponsor nations.
-It would give the president discretion to punish terrorists and their supporters by military force or by treating them as international criminals, subject - as Panama's drug-lord dictator Noriega was - to law enforcement procedures such as arrest, extradition, seizure and trial.
-It would make clear that American military forces enforcing the "Law of Nations" would be bound to obey those rules of international law that forbid the targeting of innocent civilians or inflicting collateral damage upon them.
-It would effectively suspend for this case the executive ban against assassinations, while leaving it in place for other situations for which it still has meaning - for example, barring intelligence agencies from assassinating foreign leaders who have not supported an armed attack upon the United States.

All of us are horrified by Tuesday's brutalities. But we need not shoehorn the attacks into the language of war to give our president ample authority to deal with global terrorists and their state supporters. Congress has abundant constitutional power to punish the perpetrators of Tuesday's attacks for what they are: international criminals and violators of the law of all civilized nations.

Harold Hongju Koh is a professor of international law at Yale Law School. He was an assistant secretary of state in the Clinton administration.