Cornell International Law Journal Volume 41 Article 2 Issue 3 Fall 2008 Self-Defense - From the Wild West to 9/11: Who, What, When Amos N. Guiora Follow this and additional works at: http://scholarship.law.cornell.edu/cilj Part of the Law Commons Recommended Citation Guiora, Amos N. (2008) "Self-Defense - From the Wild West to 9/11: Who, What, When," Cornell International Law Journal: Vol. 41: Iss. 3, Article 2. Available at: http://scholarship.law.cornell.edu/cilj/vol41/iss3/2 This Article is brought to you for free and open access by the Journals at Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in Cornell International Law Journal by an authorized administrator of Scholarship@Cornell Law: A Digital Repository. For more information, please contact [email protected]. Self-Defense-From the Wild West to 9/11: Who, What, When' Amos N. Guioratt Introduction ..................................................... 632 A. Background ........................................... 632 B. Historical Analogies ................................... 637 I. The Need for Information ................................ 638 A. Invasion of Privacy .................................... 642 B. Limits of Intelligence-Limits of Power ................. 644 II. Self-Defense and the Wild West .......................... 645 A. Pat Garrett and the Death of Billy the Kid ............ 646 B. Wyatt Earp and the Gunfight at the O.K. Corral ....... 647 III. U.S. Constitutional Law .................................. 649 IV. U.S. Criminal Law ....................................... 650 A . D efinition ............................................ 651 B. Imm inence ........................................... 652 C . Reasonableness ....................................... 653 V. International Law and Self-Defense ....................... 654 A. The Caroline Doctrine ................................. 657 B. UN Charter: Article 51 ................................ 658 C. UN Security Council Resolutions Post-9/11 ............ 661 VI. Strict-Scrutiny Standard .................................. 663 A. A Past Failure ......................................... 664 B. The Need to Objectify Counterterrorism ............... 665 C . The Legs ............................................. 667 D. The Answer: FISA ..................................... 672 C onclusion ...................................................... 673 t Portions of this article originally printed in Anticipatory Self-Defence and International Law-A Re-Evaluation, 13 J. CONFLICT & SECURITY L. 3 (2008), available at http://jcsl.oxfordjournals.org/cgi/reprint/13/1/3. Tt Professor of Law, S.J. Quinney College of Law, University of Utah. I would like to thank my good friend and generous colleague, Professor Andrew P. Morriss for suggesting a possible connection between the Wild West and terrorism and then for so graciously assisting in the early stages of my research; participants at the United States Military Academy Conference on the "Rule of Law in Armed Conflict;" faculty and students at The John Marshall College of Law; students at The University of Pennsylvania School of Law; participants at the Lewis and Clark Law School faculty workshop; faculty and students at Rutgers-Camden who attended my talk sponsored by the International Law Society; Anne Hollander for preliminary research assistance; and Artemis Vamianakis (candidate for J.D., S.J. Quinney College of Law, 2009) for her invaluable research and editing contributions. 41 CORNELL INT'L L.J. 631 (2008) Cornell International Law Journal Vol. 41 "Rhetoric is a poor substitute for action, and we have trusted only to rhetoric. If we are really to be a great nation, we must not merely talk; we must act big.' "[D]etached reflection cannot be demanded in the presence of an uplifted 2 knife." Introduction The above quotations reflect important tensions inherent in self- defense-how does the United States "act big;" and is "detached reflection" truly possible in the face of a potential attack? For the past six years, much of the Bush Administration's operational counterterrorism has been largely ineffective. In addition, serious questions have been raised as to whether or not a counterterrorism strategy has been developed since the attacks of September 11, 2001 (9/11). Counterterrorism tactics must not be confused with counterterrorism strategy. For example, the question of whether a suspected terrorist is killed is tactical. Alternatively, strategic questions include why that indi- vidual was targeted, what is the long term significance of his death, and what threat did he present. Institutionalized, legal-based process is of para- mount importance in developing a counterterrorism strategy. The gather- ing and analysis of intelligence information is the essence of operational counterterrorism. Checks and balances and the doctrine of separation of powers are the essence of the American constitutional paradigm and pro- tect against an unfettered executive. The paradigm this article proposes articulates a confluence between intelligence gathering, making that intelli- gence operational, and the checks required on the executive to ensure the legality of the President's decisions. A. Background One of the most important questions post-9/11 is how a nation-state defends itself against an unseen enemy. 3 This article will focus on how a nation-state that believes in the rule of law and morality in armed conflict prevents attacks against its innocent citizens. Self-defense, or active pre- emptive self-defense, 4 against the unseen enemy is extraordinarily difficult and fraught with enormous risks and dangers. 5 How and when a nation- state defends itself against such an enemy is not only critical to address, but it is the combat of the future. In the context of post-9/11 operational 1. Theodore Roosevelt, METROPOLITAN, Sept. 1917, at 21. 2. Nicholas J. Johnson, Self-Defense?, 2 J. L. EcON. & POL'Y 187, 205 (2006) (citing Brown v. United States, 256 U.S. 335, 343 (1921)). 3. See Stephen W. Dummer, Comment, Secure Flight and Dataveillance, A New Type of Civil Liberties Erosion: Stripping Your Rights When You Don't Even Know It, 75 Miss. LJ. 583, 612 (2006). 4. See infra notes 16-17 and accompanying text for definitions of self-defense. 5. See Amos Guiora, Targeted Killing as Active Self-Defense, 36 CASE W. REs. J. INT'L L. 319, 324 (2004) [hereinafter Targeted Killing]. 2008 Self-Defense- From the Wild West to 9/11 counterterrorism, the question is whether self-defense, as presently articu- lated by international law, enables the United States to act preventively in an effective way. This article will address this issue in an interdisciplinary manner, analyzing American criminal and constitutional law, as well as international law. This analysis will enable policy and decisionmakers, academics, the general public, and military commanders to develop and implement a definition of self-defense relevant to post-9/11 conflicts. An introduction of this nature invariably raises the question of whether there is a need for another article on this subject. Although case law addressing6 and literature discussing 7 self-defense are boundless and impressive, this article, through an interdisciplinary analysis of self- defense, articulates a new process-based self-defense standard predicated on a historical analogy to the Wild West. This article also proposes expanding substantive procedural measures between the U.S. judicial and executive branches in operational counterterrorism. The attacks of September 11, 2001, taught decisionmakers and com- manders alike that in future military conflicts, nation-states will usually confront non-state actors, rather than other nation-states. 8 The traditional state versus state war as understood by the "founding fathers" of interna- tional law is largely a historical relic.9 Given this change in the nature of the conflict, the events of 9/11 clearly suggest the need to re-articulate international law.10 6. For case law regarding self-defense-including international, federal, and state cases-see, for example, Brown v. United States, 256 U.S. 335, 343 (1921) ("Detached reflection cannot be demanded in the presence of uplifted knife."); Beard v. United States, 158 U.S. 550, 563-64 (1895) (no duty to retreat before using deadly force); State v. Hogan, 764 A.2d 1012, 1026-27 (NJ. Super. Ct. App. Div. 2001) (justification defenses are not available in a prosecution where recklessness or negligence suffices to establish the requisite culpability state); People v. Goetz, 497 N.E.2d 41, 46-48 (N.Y. 1986) (reasonableness means that defendant has requisite belief that deadly force is necessary and that such belief is reasonable); Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), 2005 l.CJ, 116 (Dec. 19). 7. See, e.g., Mary Ellen McConnell & Maria Alevras-Chen, The Ban on the Bomb- and Bombing: Iran, the U.S., and the International Law of Self-Defense, 57 SYRACUSE L. REV. 497 (2007); Niaz A. Shah, Self-Defense, Anticipatory Self-Defense and Pre-emption: Inter- national Law's Response to Terrorism, 12 J. CONFLICT & SECURITY L. 95 (2007). 8. See D.A. Jeremy Telman, The Foreign Affairs Power: Does the Constitution Matter?, 80 TEMP. L. REv. 245, 288 (2007) (reviewing PETER IRONS, WAR POWERS: How THE IMPE- RIAL PRESIDENCY HIJACKED THE CONSTITUTION (2005) and JOHN Yoo, THE POWERS OF WAR AND PEACE: THE CONSTITUTION AND FOREIGN AFFAIRS AFTER 9/11 (2005)) (stating that "the enemies in the war on terror are often