Monday, June 2, 2014

Al-Qaeda's Evolving Threat and U.S. Strategy to Combat It: Part II

     Thirteen years and two wars later, the United States is still at war, or "engaged in an armed conflict" as some describe it.  Yet they are not at war in the typical sense of the word especially in terms of how the United States Constitution defines war and war making ability; which is Congress declaring war on a sovereign nation.  The United States is still involved in the "War on Terror," a broad term that has come to describe certain practices the United States engages in to keep its citizens safe against radical militants.

     After the terror attacks on September 11, 2001, Congress authorized the president to use "all necessary and appropriate force" against those responsible for the attacks.  However, since the 2001 Authorization for Use of Military Force (AUMF), two key problems have arisen: 1) the threat, a.k.a terrorist groups (al-Qaeda in particular), has since evolved into an amoeba of their former 2001 selves, and; 2) the AUMF has been interpreted and widely expanded unilaterally by the executive branch since 2001 and used to justify a myriad of counterterrorism operations abroad.

[Note: Part II discusses the second point raised above - However, since the 2001 Authorization for Use of Military Force (AUMF), two key problems have arisen: 2) the AUMF has been interpreted and widely expanded unilaterally by the executive branch since 2001 and used to justify a myriad of counterterrorism operations abroad. ]

AUMF

 


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.

       Since its passing, it has been used to justify a broad range of counterterrorism measures including the detention of enemy combatants who have not been charged with any crimes.  While al-Qaeda was responsible for the attacks on September 11, 2001, the president has used the AUMF to target groups such as the Taliban.  In addition, groups such as AQAP and AQIM were not in existence in 2001, which raises legal questions about the use of force against such organizations.

     In a Senate Foreign Relations Committee hearing recently focusing on the authorization of force after US forces withdraw from Afghanistan, two legal representatives from the Obama administration immensely frustrated the members of the committee.  According to Stephen Preston, General Council at the Department of Defense (DOD) and Mary McLeod, Principal Deputy Legal Adviser at the State Department, the president has the authority under Article II of the US Constitution to target those who pose an imminent threat to the United States.  Furthermore, this authority extends beyond AUMF, which affords the president tremendous power to use military force despite constitutional  stipulations -  that Congress must declare war and authorize military force while the president is the commander in chief.

     Lawmakers on the Senate panel were taken aback by this sweeping exclamation of executive authority and questioned why the AUMF is even necessary.  Senators such as Chairman Bob Menendez (D-NJ) pressed the witnesses on what the AUMF allows the president to do that Article II does not to which the witnesses demurred much to the displeasure of the senators on the committee.  Senator Tim Kaine (D-VA) questioned what the absence of an authorization could mean and while having to read subliminally into the witnesses' bombastic and cagey testimony, he concluded that the absence of AUMF could raise questions of continued counterterrorism operations of the DOD, detention of detainees at Guantanamo Bay, and engagement in Afghanistan after the 2014 troop drawndown.  Others, such as Senator Corker, were more candid stating that the president can virtually act unilaterally and Congress is irrelevant in the discussion.

     The sweeping power outlined by the legal representatives of the Obama administration raises a conflict within the defense community concerning the attacks on the US special mission compound in Libya in 2012 as well.  According to the Chairman of the Joint Chiefs of Staff Martin Dempsey, AUMF does not cover the perpetrators of those attacks (Ansar al-Sharia) meaning the US cannot target them.  However, witnesses at last week's Senate committee hearing stated the president can target groups if they pose an imminent threat to the US even if they did not exist in 2001.

    It is important to define what "imminent threat" is to greater understand the scope the executive branch claims it enjoys.  According to Ms. McLeod, an individual who is planning an attack poses an imminent threat.  This definition is also important to examine as the Obama administration outlined in a White Paper the criteria needed to target American citizens abroad who take up arms against the US.  The first prong of the three prong criteria justifying lethal attacks against Americans overseas states, "an informed, high level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States."  Of course, "imminent threat" can be left to interpretation as the administration had been weighing for some time whether or not to execute an American who became a high level member of al-Shabaab.  Taking time and waiting to examine the issue conflicts semantically with the word imminent, however. 

Beyond Statutory Authority 

 

     Some experts and critics of the Obama administration believe that the administration's justification for unilateral force against al-Qaeda and "associate forces" falls outside of statutory authority as "associate forces" is not included in the text of AUMF.  This broad interpretation has allowed the Obama administration to target a wider array of terrorist cells.  Mr. Preston and Ms. McLeod used the term "associate forces" several times during their Congressional testimony, which points to unilateral statutory expansion by the executive branch.

 

Drones

 

     President Obama has relied heavily on the use of unmanned drones (UAV) to collect intelligence and combat Islamic militants.  The administration believes drones are both effective in intelligence collection and offensive action as many drones are armed with Hellfire missiles, which have been used to "target" militant leaders.  However, some believe the use of drones has had a reverse effect on Islamic militants who use the catastrophic effect drones have had on local societies as reason to take up arms against the United States.  While the administration maintains they only carry out drone strikes when there is "near certainty" no civilian lives will be lost, outlets such as the "Long War Journal," "New America Foundation," and the "Bureau of Investigative Journalism" have conflicting documentation of the number of civilians killed in American drone strikes.  Evidence gathered from drone strikes suggests that the administration and defense officials may not be as careful as they wish to appear to be when conducting such strikes as countless civilian lives have been lost.

     According to a policy paper published by the Strategic Studies Institute and the US Army War College Press:
One reasonably consistent finding across the studies is that drone strikes have little influence, positive or negative, on the amount of insurgent violence that occurs in Afghanistan...This fact could be creating a dynamic in which all insurgent organizations, even those that have few grievances against United States and the government of Pakistan or that engage in low levels of violence, feel threatened by the drones and seek support from other insurgent organizations that do have as their goal undermining the U.S. position in the region.

     While drone strikes are supposed to deter militant activity through the loss of life, evidence points to the opposite.  This was most evident by a YouTube video that circulated recently documenting a massive meeting of members of AQAP in Yemen.  The video indicated that such militants are not concerned about drone strikes.  Additionally, drones that kill innocent civilians has contributed to anti-Western furor and reports indicate such negligence in strikes has spurred some to join radical Islamist groups.

War Making Powers


     The use of drones and Special Forces to combat Islamic militants has been subject to some Congressional discontent as these acts of war are not consistent with the Constitution.  A prime example is the US involvement in 2011 during the Libyan unrest to oust Muammar Gaddafi.  President Obama offered limited air support (without Congressional authorization) during the campaign, which was led mostly by Britain and France.

     Lawmakers raised concerns about such actions during a Senate Foreign Relations Committee hearing.  Senator Jeff Flake (R-AZ) questioned the Obama administration's legal representatives on their previous testimony claiming the president has constitutional authority to act against anyone he believes to be an "imminent threat."  As Flake asserted, Libya was a sovereign nation and asked if they posed an "imminent threat" to US national security.  Ms. McLeod responded by stating the administration was acting on United Nation's Security Council resolutions to which Flake raised concern over the lack of Congressional involvement in acts of war even if they are in concert with Security Council resolutions especially since the conflict did not pose an imminent threat.

     David A. Simon examined recently in an article published in the Pepperdine Law Review titled "Ending Perpetual War? Constitutional War Termination Powers and the Conflict Against Al Qaeda," how wars or armed conflicts are concluded.  As Simon noted, typically wars were declared by Congress and concluded with the signing of a peace treaty.  However, modern precedent follows a pattern of presidential proclamation for ending conflicts rather than a signed treaty.  President Obama validated Simon's thesis when delivering a speech in the Rose Garden last week outlining the end of armed combat in Afghanistan asserting, "this is how wars end in the 21st century, not signing ceremonies," but rather counterterrorism training and advisory roles.  The United States forces will provide an advisory role to the Afghan military for the next two years until the US completely draws down to just embassy staff by 2017. 

     Recent presidential action (and Congressional action such as AUMF) neglects and shifts previous constitutional law principles for engaging in and ending war or actions of war.  As Mr. Simon noted, "From a separation of powers perspective, however, Congress's abdication of its war termination authority after World War II has contributed to an imbalance of power, and thereby privileging the President's role in ending war."  Mr. Simon's point begs the question, does the Constitution's neglect for addressing Congress's role in concluding wars provide de facto war conclusion authority to the Executive and if so, does this upset the balance of separation of powers giving the president more authority?

     Evidently, it might.  According to the Obama administration's legal representatives, the absence of a Congressional authorization for use of military force would affect the detention of combatants held at Guantanamo Bay because if the president were to conclude the armed conflict between the US and al-Qaeda (or "associate forces") there would be no legal justification for detention.  However, executive branch lawyers have also determined, nearly unanimously, that the president has constitutional authority to target anyone who may pose an imminent threat.  Recent action by the Obama administration also expands on this rationale as seen in Libya in 2011 and with the US dispensing forces in Nigeria to aid in the return of over 200 captured school girls by the group Boko Haram.  President Obama sent a letter to Congress notifying them of the deployment but again, did not receive or request authorization to do so.

A More Nimble Strategy  
     
     The Obama administration has tried to get a war-wary nation off a permanent war footing since 2008. President Obama has also tried to reflect the change in the terrorism community by shifting to different strategies to combat them.  Such strategies include, arming and training security forces in indigenous countries. In the president's speech at West Point last week, he outlined a fund to assist and build partnerships with other nations who have significant terrorist problems.  The president is requesting $5 billion but stated he would have to work with Congress on the final appropriation.  At a conference held at Carnegie Endowment for International Peace last week regarding al-Qaeda and their shifts in tactics, National Security Council adviser to President Obama Jen Easterly stated the fund will be part of the overseas contingency operations appropriations, which is still being hashed out by Congress as part of the FY2015 National Defense Authorization Act, and will be used to assist countries such as France in Africa to fight terror cells in Mali by providing air support, intelligence, and possibly Special Forces.  Ms. Easterly reiterated the fund will not include large platforms such as deployments to regions such as Iraq and Afghanistan but rather smaller platforms as seen with the capture of terror fugitive Abu Anas al-Libi in Libya by US Special Forces.


     
     The Authorization for Use of Military Force passed in 2001 has allowed the president to carry out a wide range of tactics and military operations without having to go to Congress each time.  This precedent has emboldened the executive to broaden the statutory language to target additional terror cells who may pose an "imminent threat."  However, terrorists have demonstrated that they will stop at nothing to wage war against the West and the office of the presidency is under immense pressure to prevent such actions.  Furthermore, Congressional deadlock has left the president with few options for combating terrorists.  While the use of chemical weapons by President Assad in Syria against his own citizens did not pose an "imminent threat" to Americans, the president did feel as though he had constitutional authority to act alone in military strikes against the Assad regime despite putting the issue to Congress for a vote.  Congress appeared to be in no rush to pass such an authorization, raising concerns of future instances where the president might need hasty Congressional action.   

     As the longest standing constitutional democracy in history, it is imperative the United States address the issue of war making power and who the president can target as the balance continues to tip in favor of the Executive.  While groups such as al-Qaeda continue to threaten the security of Americans as certain groups have vowed to attack the US again, it is of the utmost importance the US government does not stoop to the lawless, power usurping level of rouge militants - it is imperative for the future of American democracy.    

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