There is a line, and it's not "fine" at all. In fact, it's enormous - it's called a border - as in Waco happened inside the territorial border of the US, and bin Laden direct action engagement did not. US service members are not allowed to engage in military operations (with some HIGHLY limited) exceptions, under the terms of Posse Comitatus. No such restrictions apply outside our borders.
Right. That's exactly why the issue of "governing jurisdiction is so important. The legal limitations for U.S. military personnel under U.S. law aren't terribly important in the Waco example I've used. It'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?
There are, in the rules of international warfare, rules that prohibit such actions outside the theater of combat. But, IMO, those rules are more than a bit anachronistic as they relate to this current threat. Where isn't the battlefield in this war? And, I clearly think that the quasi-tribal areas of northern Pakistan are well-within those battlefield borders.
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. 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).
Having said that, I think your point is meritorious when discussing US service members engaging US citizens outside the confines of the country, and targeting those citizens for "assassination". That, as a US legal matter, becomes much more complicated. I think reasonable people can disagree about its legality.
That's right, but keep in mind it also has to do with non-citizens who are acting inside or outside the U.S. That's part of the whole dilemma here. If Osama bin Laden is targeted because he's an enemy of the 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?
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.