(Fw from Jon Roland) re: Presidential power to order killing of f oreign leaders

[Scarberry, Mark]

Perhaps Jon or someone else could explain how the cited statutes (18 USC
sec. 956 and 960) relate to (1) the War Powers Resolution (see
http://www.yale.edu/lawweb/avalon/warpower.htm
<http://www.yale.edu/lawweb/avalon/warpower.htm>  ), and (2) the actual
historical use of military power by the US, which since WWII has never
proceeded on the basis of a declaration of war or issuance of letters of
marque and reprisal.

Further, my quick review of the annotations to the statutes suggests (1)
that they do not govern actions involving regular military forces of the US
and (2) that the statutes do not apply to actions against the Iraqi
government because we are not "at peace" with that government as that phrase
is used in the statutes (because US foreign policy is committed to the
overthrow of the Iraqi regime). These conclusions would allow use of either
CIA or Special Forces personnel to remove Saddam from power--at least the
cited statutes would not prohibit such actions.

Perhaps the only remaining domestic legal barrier to action to remove Saddam
Hussein is the War Powers Resolution, which (as I read it) says that the
President may not use military force absent Congressional authorization or
attack on the US, but that if he does he must stop within 60 days unless
Congress approves. But the constitutionality of the War Powers Resolution
has been contested by every president since its enactment, right?

Mark S. Scarberry
Pepperdine University School of Law
mark.scarberry at pepperdine.edu

-----Original Message-----
From: Volokh, Eugene [mailto:VOLOKH at MAIL.LAW.UCLA.EDU]
Sent: Wednesday, June 19, 2002 7:57 AM
To: CONLAWPROF at listserv.ucla.edu
Subject: (Fw from Jon Roland) re: Presidential power to order killing of f
oreign leaders





-----Original Message-----
From: Jon Roland  <jon.roland at constitution.org>
Subject: Re: Presidential power to order killing of foreign leaders
To: Discussion list for con law professors  <CONLAWPROF at listserv.ucla.edu>

The presidential order forbidding assassinations of foreign officials
has been rescinded. However, the President and other government
agents are subject, as are other persons, to 18 USC Ch. 45, and
especially Sec. 956 and 960, which forbid warlike actions against
foreign nations or their citizens. Absent a congressional declaration
of war or letters of marque and reprisal, offensive military or
assassination operations would be violations of such statutory
provisions, which are authorized under the "laws of nations" clause.
See "The meaning of "offenses against the laws of nations'" at
http://www.constitution.org/cmt/laws_of_nations.htm
<http://www.constitution.org/cmt/laws_of_nations.htm>  .

What is needed to legalize such actions would be a letter of marque
and reprisal issued by Congress to the President. Such a "letter" has
the form of a warrant to pass beyond the borders ("marque") and to
there search, seize, or destroy ("reprisal") defined persons or
property, normally in proportion to an offense done to this country
or its citizens. It could also be used to do things like detain
"enemy combatants" or "material witnesses", but only outside U.S.
civil jurisdiction. Due process rights kick in within the territorial
borders of this country, and a letter of marque and reprisal to take
action within U.S. territorial limits would be unconstitutional.

A further discussion of letters of marque and reprisal and
declarations of war might be in order, as well as territorial
jurisdiction and the constitutional status of the current statute on
holding "material witnesses". See "Federal officials are taking
terror suspects into custody under the
material-witness law", by Warren Richey | Staff writer of The
Christian Science Monitor, from the June 19, 2002 edition -
http://www.csmonitor.com/2002/0619/p01s02-usju.html
<http://www.csmonitor.com/2002/0619/p01s02-usju.html>


--Jon

===================================================================
Our efforts depend on donations from people like you. To help see
           http://www.constitution.org/whatucando.htm
<http://www.constitution.org/whatucando.htm>
Join PayPal through https://www.paypal.com/affil/pal=D8E8YJ95YZPSU
<https://www.paypal.com/affil/pal=D8E8YJ95YZPSU>
                  and we may get a referral fee.
Constitution Society, 7301 RR 620 N #155,276, Austin, TX 78726
512/257-2606                         Date: 06/19/02  Time: 09:08:31
http://www.constitution.org/ <http://www.constitution.org/>
mailto:jon.roland at constitution.org <mailto:jon.roland at constitution.org>
===================================================================

-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/cgi-bin/mailman/private/conlawprof/attachments/20020619/c94b8ef1/attachment.htm