By Jacob Fisher for GlobalJusticeBlog.com.
The United States was changed forever after the terrorist attacks of September 11, 2001, and since then we as a nation have been fighting an enemy unlike any previously known. Traditional rules of warfare, International Law, and treaties such as the Geneva Conventions which coalesced into the Law of Armed Conflict have always regulated parties to a conflict, attempting to preserve life and avoid unnecessary suffering and damage. These authorities are among those to which the President has pointed for authorization of lethal force against our enemy.
A very common use of lethal force authorized by the President is the practice of drone strikes, and the United States’ heavy use of this tactic has made this a very controversial topic. Does the President have authority to use lethal force in this fashion?
This paper will attempt to interpret the various authorities as the President does, to establish his authorization of lethal force. Section I will detail the President’s domestic authorities for the use of lethal force. Section II will detail the President’s international authorities for the use of lethal force.
Constitutional Art II Powers & Authorization for the Use of Military Force
The President’s constitutional authority makes him “Commander in Chief of the Army and Navy” and in times of war, the President is given Executive power to ensure that “all laws passed by Congress for the conduct of war“ and “to wage war which Congress has declared,” is faithfully executed.
In reaction to the September 11, 2001 terrorist attacks, Congress passed the Authorization for the Use of Military Force (“AUMF”), demonstrating its sweeping and comprehensive support for the war on terrorism, and the backing of the President in times of war. Congressional authorization has always been required for the President to call for military action, and the AUMF gives him exactly that. The text of the bill is sparse yet concise when it 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.”
Over a half century ago, Justice Jackson explained in Youngstown Sheet & Tube Co. v. Sawyer, that Presidential authority should be appraised in a context of three zones of authority, detailing when it is at its greatest or weakest state. Zone One is the area in which “the President acts pursuant to an express or implied authorization of Congress,” elevating his authority to its greatest point, “for it includes all that he possesses in his own right plus all that Congress can delegate.”
Here, the President has not only Constitutional authority under his Article II powers, but also statutory authority under the AUMF to use “all necessary and appropriate force … in order to prevent any future acts of international terrorism against the United States.” Thus, the President is acting under his greatest power, within “Zone One” authority. Specifically, he is authorized to use lethal force against any nation, organization, or person associated with the attacks of 9/11, to prevent future attack or threat to the United States.
Turning to targeted killings, to determine whether the President has authority under the Laws of Armed Conflict (“LOAC”) to use lethal force, an armed conflict or an imminent threat must exist. LOAC permits a nation state to act in self-defense when attacked or threatened, moreover; LOAC authorizes the President to use lethal force against enemy combatants while in an armed conflict.
Article 51- Self Defense
International law explains there are two distinct ways of looking at war; Jus ad bellum— reasons you fight, and Jus in bello— how you fight. The principal legal source of jus ad bellum derives from the Charter of the United Nations, detailing in Article 2: “All members shall refrain in their international relations from the threat or the use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations”; and therefore preventing any excessive use of force. Two exceptions exist; when authorized by the Security Council, and the other contained in Article 51: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations.”
Although the attack of 9/11 would not in the classical sense constitute an “armed attack”, the UN Security Council a day after the 9/11 attacks, passed a resolution, which recognized “the inherent right of individual or collective self-defense in accordance with the Charter,” condemning the action of the terrorists, and the UN’s “readiness to take all necessary steps to respond to the terrorists attacks of 11 September 2001, and to combat all forms of terrorism…” The United States is permitted to act under the authority of Article 51 until the UN council takes “measures necessary to maintain international peace and security,” and the Council has yet to take any “measures” to rescind the United States’ Article 51 authority.
International Humanitarian Law
The Law of Armed Conflict (“LOAC”) developed from both customary international law and treaties such as the Geneva Conventions and Hague Conventions of 1899 and 1907. It is based on general practices of nations that have governed conduct while involved in armed conflicts. The traditional rules have become accepted as legally required. Stemming from LOAC, and a branch of international law, is International Humanitarian Law (“IHL”), which regulates the conduct of a party to a conflict.
IHL contains three vital principles: 1) Military Necessity: requiring combat forces to engage in action only if necessary to accomplish a legitimate military objective that will lead to the enemy’s partial or complete submission. 2) Distinction: determining between lawful combatants and noncombatants, such as civilians, wounded, and individuals no longer engaged in combat, to engage only valid military targets. 3) Proportionality: prohibiting any amount of force in excess of what is needed to accomplish a military objective. Many refer to a fourth principle contained in LOAC of unnecessary suffering, but I believe it falls within this latter category. Proportionality balances the military advantage expected to be gained weighed against the anticipated loss of life and damage to property, of such action. It thus prohibits the use of weapons and methods of warfare causing undue harm, unnecessary loss of life and damage to property. It is important to note that LOAC does not prohibit the destruction of a military target merely because there may be collateral damage, unintended deaths, or extensive property damage.
IHL distinguishes between lawful and unlawful combatants. A lawful combatant is one who: is authorized by governmental authority or the LOAC to engage in hostilities, which provides combatant immunity for their lawful warlike acts during conflict, except for LOAC violations; must be commanded by a person responsible for subordinates; have fixed distinctive emblems recognizable at a distance; carry arms openly; and conduct combat operations according to the LOAC. An unlawful combatant is one who: directly participate in hostilities without governmental or international law authorization; engage in hostilities violating LOAC and thereby becomes a lawful target; may be killed or wounded and, if captured, may be tried as war criminal for his or her LOAC violations. In the context of an enemy the Obama administration is targeting, because no Government sanctions the enemy’s actions and they are not state actors yet taking part in hostilities, they are classified as an unlawful combatant.
In addition, IHL recognizes two types of armed conflict: 1) An armed conflict between two or more states, known as international armed conflict, (“IAC”), and 2) non-international armed conflicts (“NIAC”), which originally referred to conflicts between a state government and non-state actors, an intrastate civil war, “in the territory of the … Parties.” The literal importance has been lost in practice, and now refers to an armed conflict between a governmental and nongovernmental party, regardless the territory.
The United States conflict with terrorists does not fit perfectly into the framework of either IAC or NIAC. Originally, the Bush administration determined that the conflict fit into neither category, and was to be viewed differently. Many commentators claimed this was the administration’s attempt to “exploit” the discrepancy, by not terming it an armed conflict, and therefore declaring that Al-Qaeda was not entitled to the protections of the Geneva Conventions. The Supreme Court in Hamdan v Rumsfeld, however, held that the conflict is “non-international” because it was not between nation states, although it ran across borders, and because it was between a state government actor and non-state, nongovernmental actors.
While authorized by the IHL to target an unlawful combatant during a non-international armed conflict, it may nonetheless be an unlawful use of force if it does not comply with the requirements of necessity, distinction, and proportionality, discussed above. The necessity of targeted drone strikes stems from the desire to carry out specific military objectives, to prevent future attacks from those who threaten the nation, and to make it more difficult for our enemy to coordinate amongst other combatants and facilities. Further, the distinct destruction of a terrorist individual and specific leadership targets and command structure, decreases threats to American soldiers, American civilians, and the Unites States as a whole. Proportionality and unnecessary suffering are closely related in that specifically targeting enemy combatants decreases the enemy’s ability to plan, participate, and execute future hostilities against the United States, while keeping soldiers and innocent civilians out of the line of fire and persevering property. By carefully determining the parties to an armed conflict, the President is dismantling the enemy’s ability to threaten the United States, while decreasing the loss of life and property damage, and thereby acting under the authority of IHL.
Considering the analysis above, by the President acting with Constitutional Article II powers combined with Congressional authority under the AUMF, he is authorized to use all “necessary and appropriate force” to defend the nation “against future attacks.” Moreover, Article 51 of the U.N. Charter permits a nation state inherent right to defend itself in an armed attack. Finally, while the U.S. is involved in an armed conflict and as the Obama Administration adheres to the principles of necessity, distinction, and proportionality, IHL authorizes the use of lethal force against unlawful combatants.
Jacob Fisher is a is a JD Candidate, Class of 2016. Fisher’s entry to the GlobalJusticeBlog is part of an assignment for the course International Criminal Law, taught by Professor Wayne McCormack.
 Christopher Drew, For Spying and Attacks, Drones Play a Growing Role in Afghanistan, N.Y. Times, Feb. 20, 2010, at A6 (reporting on Air Force use of drone strikes in Afghanistan during 2009).
 U.S. CONST. art. II, § 2, cl. 1
 U.S. CONST. art. II, § 1, cl. 1.
 Ex parte Quirin, 317 U.S. at 26.
 AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES. SEC. 2. PUBLIC LAW 107–40—SEPT. 18, 2001
 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 636 (1952) (Jackson, J., concurring). See also Afsheen John Radsan, Richard Murphy THE EVOLUTION OF LAW AND POLICY FOR CIA TARGETED KILLING. 5 J. Nat’l Security L. & Pol’y 439.
 Article 2(4) provides: “All Members shall refrain in their international relations from the threat or use of force….” U.N. Charter art. 2, para. 4.
 Id at 41.
 U.N. Charter art. 51.
 UN Sec. Res. 1373
 U.N. SCOR, 56th Sess., 4370th mtg., U.N. Doc. S/RES/1368 (2001), available at http://www.un.org/Docs/scres/2001/sc2001.htm (last visited Nov. 1, 2005).
 U.N. Charter Art. 51
 Jonathan Ulrich, THE GLOVES WERE NEVER ON: DEFINING THE PRESIDENT’S AUTHORITY TO ORDER TARGETED KILLING IN THE WAR AGAINST TERRORISM. 45 Va. J. Int’l L. 1029
 What Is International Humanitarian Law?, ICRC 1 (July 2004), http://www.icrc.org/eng/assests/files/other/what_is_ihl.pdf (“[IHL is] a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict. It protects persons who are not or are no longer participating in the hostilities and restricts the means and methods of warfare.”).
 Id, see also http://usmilitary.about.com/cs/wars/a/loac.htm
 Richard Burst, Uneasy Targets. 98-APR A.B.A J. 50 (2012) (Discussing Amos N. Guiora’s active self-defense strategy, wherein Guiora labels the enemy an unlawful combatant.)
 See Geoffrey S. Corn, Hamdan, Lebanon, and the Regulation of Hostilities: The Need to Recognize a Hybrid Category of Armed Conflict, 40 Vand. J. Transnat’l L. 295, 308 (2007) (tracing the view that the category of noninternational armed conflict was limited to intrastate civil wars).
 Id, see also Hamdan v. Rumsfeld, 548 U.S. 557, 629-30 (2006) (explaining the government’s position that the conflict with Al Qaeda was: (1) not an international conflict because Al Qaeda was not a nation signatory to the Geneva Conventions, and (2) not a noninternational conflict because the conflict was “international in scope”).
 Id at 630
 See ICRC