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A Right of the State to Preemptive Self-Defense?

My colleague Amos Guiora has written yet another interesting paper, this one regarding the circumstances in which a state can take preemptive or anticipatory actions against a non-state actor. Contrary to the limitations that some international law scholars seek to impose, Guiora contends that a state should be allowed to take preemptive action to protect itself against such actors (i.e., terrorists) -- provided its has sufficiently strong operational intelligence. In this country, to ensure that the Executive truly has such intelligence, Guiora suggests FISA court review.

Christopher M (mail):
It seems highly implausible that the FISA court is ever going to turn down the Executive's request for permission to act. The risk for the court and its judges of approving a request is nil; the risk of denying a request, even if the evidence presented is weak, is that some terrorist attack will follow and the FISA court and its judges will be publicly vilified and made to feel responsible for the attack itself. It's hard to see how this procedure could enforce any rigorous standard of operational intelligence.
3.17.2008 8:01pm
Kazinski:
Are you suggesting Death Warrants? Nothing wrong with that as long as they are not like search warrants, where a specific place and time frame have to be determined. Take this attack for instance:

At least 20 people were killed in a missile strike near the Afghan border on Sunday, state-run Pakistan Television said.

The strike destroyed the house of a suspected militant leader, according to a local tribesman.

Seven missiles were fired in the strike in the tribal area of South Waziristan, the television report said.


Is the Government going to have to give the address of the mud hut, and the list of militants also in the vicinity, or is the death warrant on the target sufficient to take out the whole hut and and appropriate radius. Will the government have to certify that no animals were harmed in the assassination?
3.17.2008 8:04pm
Chris 24601 (mail):
I don't think there's really any other kind of self-defense. If someone has attacked me, but can't attack in the future, then it's really just retaliation, not self-defense. So it's critical that someone be going to attack me, in order for the use of force to be genuinely defensive. But if a future attack is necessary for the legitimate use of defensive force, it's hard to see why it wouldn't also be sufficient.
3.17.2008 8:05pm
RMCACE (mail):
I don't trust the executive enough to allow this. The administration has been accused of allowing political causes to influence intelligence and IGNORING FISA. A death warrant, even requiring them to go through FISA, is just another FISA requirement they can ignore.
3.17.2008 8:06pm
EIDE_Interface (mail):
All this protesting strikes me as so much whistling past the graveyard...
3.17.2008 8:30pm
George Tenet Fangirl:
Does the state have a duty to retreat?
3.17.2008 8:31pm
Fred the Fourth (mail):
Chris,
Your description does not seem to include the ongoing attack, against which self-defense is possible without looking any farther into the future than right now.
On the other hand, your analysis is on point, since otherwise there would be no legitimate self-defense against discrete but repeated attacks.
3.17.2008 8:35pm
Kazinski:
RMCACE:
Well of course the President can ignore the FISA court, if the primary purpose of the warrant is for foreign intelligence purposes. The only reason for FISA is to make sure the fruits of the surveillance are admissible in court, not to authorize the surveillance in the first place. As the FISA court of review put it:

The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power. The question before us is the reverse, does FISA amplify the President's power by providing a mechanism that at least approaches a classic warrant and which therefore supports the government's contention that FISA searches are constitutionally reasonable.


I think we can agree FISA Death Warrants would serve no purpose, because the results of such a warrant (if properly served) probably would not be admissible in court anyway, I can't see why the President would bother. It would be just one more step in trying to make impose handcuff the military with the constructs of civil law. Search warrants, probable cause, subpoenas shouldn't be elements of basic training.
3.17.2008 8:38pm
Benjamin Davis (mail):
It seems this is another bad idea that does not seem to grasp the fact that armed conflict with non-state actors has been part of the scene since at least the Romans. I get so tired of this improvisation.
Best,
Ben
3.17.2008 9:09pm
Elliot123 (mail):
Did a FISA court say the US could not intercept a communication between Pakistan and Iraq if he packets passed through a server in the US?
3.17.2008 9:36pm
Chris 24601 (mail):
Fred the Fourth--I think we can divide an ongoing attack into the part that's over and the part that's yet to come. If somehow the attack were suddenly to stop, then we wouldn't be able to use force except as retaliation. So the future part of the ongoing attack is what's critical.
3.17.2008 10:52pm
K Parker (mail):
G.T. Fangirl,
Does the state have a duty to retreat?
Europe* certainly seems to think so!








*(With the possible, and laudable, exception of Denmark.)
3.18.2008 3:17am
K Parker (mail):
Kazinski,

Do you have a link to that quote from the FISA court of review?
3.18.2008 3:17am