[OldDeckHand]

"t's not as if we'd feel any better about the whole matter if the Branch Davidians had been incinerated during a raid by Brazilian commandos, right?"

No, it wouldn't. I'm not saying there aren't issues - even legal issues - about the US violating the territorial sovereignty of Pakistan. Clearly, we did and clearly there are. But, I am also saying that international law as it exists today is painfully wanting as it relates to non-governmental actors waging their own private war. I would argue that (so-called) international law frequently steers into what should be a plainly political issue between two sovereigns - Us and the Pakistanis in this case.

But, I understand and concede your point. If we get burned here on the sovereignty issue, we only have ourselves to blame - if for no other reason as we've used these very "international laws" to butt ourselves into conflicts between two sovereign countries before.

I often think of international law MUCH like I think of the concept of pure democracy - Democracy is three wolves and sheep voting on what's for dinner. International law FREQUENTLY is a hundred or more foreign governments voting on how the US or Israel violated international law.

"This is why a clear declaration of war by Congress is so critical, not some half-@ssed "authorization of force" that can be construed to mean anything a civilian or military leader wants it to mean."

There is precedent, going back all the way to the founding of the country. We did not declare war on the Barbary Pirates, but we certainly sent the Marines into sovereign territorial waters to take care of our problem.

Yes, this AUMF is a bit murky, even ethereal. But, so is our problem. When speaking only about American law, I'm not going to lose much sleep over the way the 9/11 AUMF was worded. If it means that the President can send a covert op team into Pakistan, or even France for that matter, to kill or capture a guy like bin Laden, I'm fine with it.

If France or Pakistan isn't, then I guess that's something they can bring up to us.

"As for the question I've highlighted from your post, you obviously believe there are places that are not part of the "battlefield" in this "war" (e.g., Waco, Texas). "

Actually, I'm not so sure. BUT, even if the US is a battlefield, the existing US law of Posse Comitatus Act still is in force. That statute says that it cannot be ignored by the Executive unless the prohibition on military force inside our borders are EXPRESSLY approved by Congress. Clearly, that wasn't done in the 9/11 AUMF.

"United States, then does it make sense that he can be "legally" killed in Pakistan but must be apprehended and subject to prosecution if he had been living on a compound in Dearborn, Michigan?"

Sure it does. Why? Becuae Posse Comitatus doesn't allow the military use of force in Dearbornistan without express Congressional approval.

I would argue that if such a hideout of compound is located inside the territorial borders of the country, Congress could authorize force, and the President could then order a missile strike on that compound.

[presidio9]

Personally, I doubt even Tim McVeigh would have cared if the ATF had gone into the Branch Davidian compound at high noon for a shootout with David Koresh. In Waco, it was the horrific collateral damage that bothered people.

[Alberta's Child]

Very good post. All of this boils down to the key point I made in my original post: What is the governing jurisdiction under which the "legalities" of this kind of action are to be examined? It would seem that there are only three (or four) possibilities: U.S. law, Pakistani law, or "international law" (whatever that might mean). The fourth possibility would be a variation of U.S. law (the Uniform Code of Military Justice), though that probably doesn't come into play here unless there's an allegation that U.S. military personnel were operating without authorization.

The implications of this confusion are becoming more clear now, as the Pakistani government appears to be making public statements that they were fully involved in this operation -- even after protesting about it a couple of days ago. I suspect this is because they know they'd have a legal dilemma on their hands if they don't pretend to have been involved -- i.e., how do they react to a U.S. military mission inside their borders to capture/kill a person who is not a U.S. citizen?

The Barbary Pirates example is a good illustration of just how well the U.S. legal system was originally designed. The U.S. Constitution (Article I, Section 8) specifically gives Congress the power to declare war, "raise and support Armies," and "provide and maintain a Navy." One reason why the "Armies" and "Navy" are listed separately is that they had two completely different functions under U.S. law. The "Army" was a typical military force that would be used in warfare against other countries and to repel invasions, while the "Navy" was designed to function in places with no governing jurisdiction at all (i.e., the "High Seas").

This is why the U.S. Marine Corps was organized under the U.S. Navy as a naval infantry unit. The action against the Barbary Pirates was a military campaign against an enemy thousands of miles away who could not be dealt with through traditional diplomatic or military means -- in response to piracy in open waters that had no governing jurisdiction. This may also explain why a Navy SEAL unit was used in the Osama bin Laden raid (as opposed to Army Special Forces), too.

All in all, it's a very complicated question -- and one that shouldn't be glossed over, in my opinion.