Use of Armed Force Against Terrorists in Afghanistan, Iraq, and Beyond

Abstract

This article addresses the propriety of self-defense against non-state al-Qaeda terrorist attacks on 9/11 and against the Taliban, Security Council authorizations, NATO regional action, and self-determination assistance. From both an international law and constitutional perspective, the U.S. use of military force against al Qaeda in response to 9/11 and ongoing processes of armed attack against the United States, its military vessels, its embassies abroad, and its nationals here and abroad was permissible. However, the U.S. use of military force against the Taliban in Afghanistan was highly problematic under international law and raises serious concerns about future use of military force against states that merely "harbor" or "support" or have "known links" with non-state terrorists or other international criminals. State "responsibility" for "support" of non-state terrorists can lead to use of political, diplomatic, economic, and juridical sanction strategies, but does not simplistically justify the use of military force in the absence of direct involvement by the supporting state in a process of armed attack or permissible Security Council or regional authorizations to use military force such as those regarding Iraq in 1990, Kosovo in 1999, and Libya in 2011. Permissibility of the use of military force against Iraq rests ultimately on authorization from the Security Council.

Keywords: Afghanistan, Al Qaeda, all necessary means, anticipatory self-defense, Constitution, Iraq, Kosovo, Libya, NATO, preemptive self-defense, President, regional action, safe haven, Security Council, self-defense, September 11, Taliban, terrorist, use of force, war power