It's admittedly an exotic question for a blog devoted almost exclusively to domestic criminal law, but an intriguing one. And it has a domestic law twist, which I muse about toward the end of this entry.
Over the weekend, President Obama authorized U.S. participation in bombing Libya. Surely at the time, the President knew that Gaddifi's headquarters would be among the first targets, if not the first.
There was of course a non-trivial likelihood that Gaddafi would be there. Obviously he might have been injured or killed; cynical types might speculate that the whole idea was to kill him. Was the targeting attempted murder?
I certainly don't think so, just as I didn't when President Reagan ordered a strike on Gaddafi to retaliate for Libya's terrorist bombing of a nightclub in Berlin where American servicemen were known to visit. But there's more to this episode, starting with this story in CQ Roll Call.
Again, I am not taking sides on whether the bombing is a good thing or a bad thing, and CJLF doesn't either. Generally, my personal opinion is that the exercise of American power is a good thing, because, unlike virtually any other civilization in the history of the world, America does not use its power to conquer, plunder and enslave.
I only wish President Obama had thought the same when, as a candidate for the nomination in December 2007, he said:
The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.
As Commander-in-Chief, the President does have a duty to protect and defend the United States. In instances of self-defense, the President would be within his constitutional authority to act before advising Congress or seeking its consent. History has shown us time and again, however, that military action is most successful when it is authorized and supported by the Legislative branch. It is always preferable to have the informed consent of Congress prior to any military action.
As my friend John Hinderaker observes, "[I]t is very odd that Obama did not seek Congressional approval of the Libya mission. He certainly could have gotten it. And Obama's statement that 'military action is most successful when it is authorized and supported by the Legislative branch' is one with which most people--George W. Bush, for example--would agree. So why did Obama launch a military action under circumstances that he himself describes as unconstitutional and unwise?"
Still, for however all that may be, it occurs to me that there is a theory under which it would be proper, not necessarily to bomb Gaddafi, but capture and eventually execute him.
Remember the Lockerbie atrocity? Some lackey in Libyan intelligence got nailed for it -- rightly so, mind you, and hence my discontent when the lackey got a phony "compassionate" release from his Scottish jail. But no sane person doesn't understand that Gaddafi was the moving force behind it. Why not capture him, bring him to the United States for trial, then give him the execution he has earned?
For those who think this plan is a little crazy, well...............I see your point. On the other hand, ask Manuel Noriega, one time dictator of Panama. He can be found in a jail in France, having been extradited there after having been captured by the United States and serving 15 years in a federal prison in Florida.