I posed a question yesterday: under what authority did we conducted air strikes in southern Somalia last Sunday? The best answer I’ve found so far is this (as reported in the San Jose Mercury News):
The transitional government endorsed the U.S. operations against the Islamists.
“The U.S. has the right to defend itself and bomb terrorists they say are responsible for the bombing of their embassies,” President Abdullahi Yusuf said in the Somalian capital, Mogadishu.
The embassies Yusuf referred to were the U.S. embassies in Kenya and Tanzania, which were bombed in 1998. The bombings are thought to have been planned by senior al-Qaeda leader Fazul Abdullah Muhammad, who was an intended target of the U.S. air strikes. No one has confirmed whether Muhammad or any other al-Qaeda members were killed in the strikes.
The strikes were part of an air-land-sea operation against al-Qaeda conducted by the U.S., Kenya, Ethiopia and the transitional Somali government. A press release at the Department of Defense says that U.S. Navy ships off the coast will stop vessels and search them for al-Qaeda terrorists attempting to leave Somalia.
According to the Boston Globe, a U.S. military official said that U.S. special forces accompanied Ethiopian troops into Somalia two weeks ago.
I suppose it’s legal for U.S. ships to conduct maritime intercept operations in territorial waters at a host nation’s invitation (generally speaking, “territorial waters” extend to 25 nautical miles from a country’s coastline), just as I’m pretty sure it’s legal for special forces to enter a country with that country’s permission. And U.S. Standing Rules of Engagement allow U.S. forces the right to defend themselves in all circumstances.
But an air strike is an offensive combat operation, and authority for that sort of thing has to come from the top of the chain of command.
War Powers
The Authorization for Use of Military Force (AUMF) passed by Congress in September 2001 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.
It doesn’t sound as if the al-Qaeda terrorists targeted in Somalia are suspected of having had anything to do with the 9/11 attacks.
The War Powers Act of 1973 was a joint resolution passed by the legislature…
…to fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgment of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicate by the circumstances, and to the continued use of such forces in hostilities or in such situations.
The Act also states that:
The President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities or into situation where imminent involvement in hostilities is clearly indicated by the circumstances.
Did Mr. Bush consult with Congress before ordering the air strikes in Somalia? No one I know of has answered that question. As far as I can tell, no one has even asked it.
The War Powers Act limits a president’s authority to commit U.S. forces to combat to 60 days without a declaration of war or specific authorization from Congress. Will Mr. Bush wait 60 days and the go to Congress and say, “Hey, y’all mind if I keep doing this?”
The Somalia issue has been jammed off the radar by anticipation of Mr. Bush’s impending “new way forward” announcement on the Iraq strategy. The timing of the Somali air strikes may be coincidental, but figure the odds of that being the case.
As I said yesterday, I hope that someone somewhere has worked out all the constitutional and statutory concerns regarding our Somali operations, and I hope that someone isn’t Alberto Gonzales.
If Mr. Bush has decided he has the authority to bomb any city, town or village in the world that he thinks a terrorist may be hiding in, the United States of America has become the world’s leading rogue nation.
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Commander Jeff Huber, U.S. Navy (Retired) writes from Virginia Beach, Virginia. Read his commentaries at Pen and Sword.
