Tuesday, September 30, 2014

The Khorasan Group: More on Imminence, Legal Authority, and Reports of Fabrication

     More and more reports are surfacing questioning, and some outright denying, the existence of the so-called Khorasan Group.  The group's name and reference came as a surprise to many Americans the day after the United States initiated air strikes in Syria against the Islamic State, and this previously unfamiliar group.  Given its secrecy and the little the administration has divulged since identifying the group, several journalists have put forth feelings of mistrust claiming that the government made the group up to satisfy various policies.  There are also questions regarding the need to strike the group based on the "imminent" threat they posed as some officials claimed the group was in the final execution phases while other officials have asserted that there were no concrete plans in place - the group merely aspires to attack the US in the future.  If they are not an imminent threat, did the US err in their legal authority?

The Group's Make-up


     The name, "Khorasan" is thought by some to have been made up by the government since those on the ground in Syria had never heard of the group and it simply describes the "cell" of individuals given their origins.  The word, "Khorasan" describes the general region of most of Afghanistan, Pakistan, and some of Iran, Turkmenistan, Uzbekistan, and Tajikistan.  I outlined a more in-depth look at the potential threat posed by the Khorasan Group (and other groups in the region) last week, profiling its origins and potential capabilities.

     To elaborate more on my previous post, it is possible and likely the United States Intelligence Community (IC) created the name Khorasan Group to describe this cadre or cell of al-Qaeda fighters from the Osama bin Laden era who were ordered to Syria by core al-Qaeda (a name the United States also invented and bin Laden liked so he adopted it.)  In a recent television appearance Will McCants, director of the Project on U.S. Relations with the Islamic World at the Brookings Institution, stated the leader of the Khorasan Group - who McCants noted might be dead as the result of the US bombing campaign according to some unconfirmed reports - was sent to Syria by Ayman al-Zawahiri, al-Qaeda's head, to investigate the split between the Islamic State and al-Qaeda's Syrian affiliate Jabhat al-Nusra.  Khorasan's leader, Muhsin al-Fadhli, then "shifted his focus to external operations," meaning attacks outside the region.  McCants also noted that the Khorasan Group's operations and general anatomy is very murky to those on the outside.  The Group, unlike other terrorist organizations, did not advertise or brand themselves as publicly as others, likely to remain hidden in the shadows to protect the integrity of their clandestine external operations - one reason many in the general public likely never heard of them and why the US government wanted to keep knowledge of the group under wraps.

     Individuals on the ground in Syria had never heard of the Group before, according to a tweet by NBC's chief foreign correspondent Richard Engel as reported by The Intercept, likely because the Khorasan Group did not call themselves that.  "It was a term of convenience," Bobby Chesney, Charles I. Francis Professor in Law at the University of Texas School of Law, stated at a recent discussion on the legality of President Obama's new military action against the Islamic State hosted by the right-leaning Heritage Foundation last week.  Chesney followed up by stating that the Group is al-Qaeda.  Its members are comprised of individuals who traveled the general Khorasan region following the US intervention in Afghanistan.  Though the name may have been created by the United States IC, it is not likely the IC fabricated the members of the group's existence, purpose, or aspirations, despite reports that the US government created it for their own policy justifications.  In fact, a single blog post by the well revered Lawfare Blog, provides several examples of reporting on the movement of the Khorasan Group's members, though the reports neglect to explicitly call the members by that name until after the US government publicly did.

Imminent Threat


     As stated above, I previously discussed the issue of imminence and the Khorasan Group but I would like to discuss here the context of imminence in terms of legal implications and reports that the Group may have been conceived by the IC.  Bobby Chesney at last week's Heritage discussion described imminence in terms of the administration's view of constitutional Article II authority to strike threatening targets as "not defined to mean strict, temporal imminence, but imminence is defined to mean that there is a genuine threat to American lives and that you have a fleeting opportunity to act now and you're not going to reliably know when the actual moment of the attack will come."

     Mary McLeod, Principal Deputy Legal Adviser at the State Department, stated at a May hearing of the Senate Foreign Relations Committee that an "imminent threat" can be defined as "an individual who is planning an attack."  Ms. McLeod was speaking on behalf of the Obama administration, which is important to distinguish as this is their interpretation and functional definition of an imminent threat.

     The Khorasan Group, as I have mentioned previously, has the capacity to plan and carryout large scale attacks against the west given their storied background, terror network, and partners, who allegedly include Ibrahim al-Asiri, the prominent bomb maker from al-Qaeda's branch in Yemen who traveled to Syria to assist with external operations.  While officials acknowledge they did not have specific information about a specific plot in the works, the definition provided by Ms. McLeod and Mr. Chesney would satisfy legal requirements for imminence - though these exact legal justifications are the subject of strict scrutiny from human and civil rights groups.

Legal Authority


      Regarding the legal authority for strikes in Syria, there is much debate over whether or not the Islamic State falls under the scope of congressional authorizations passed in the wake of the 9/11 attacks and subsequent invasion of Iraq.  Excluding these murky legal arguments, it would appear that the Khorasan Group would fall under the scope of at least one of these congressional statutory authorizations as well as the constitutional Article II self-defense authority. 

      The 2001 Authorization for Use of Military Force (AUMF) has been the subject of harsh legal criticism for its expansive interpretation by the Obama administration.  Mr. Chesney described the two prongs in which a terrorist entity or organization would fall under its scope - the organization must have an affiliation with al-Qaeda, and it must be engaged in hostilities with the United States.  Mr. Chesney noted that not all groups associated with al-Qaeda are targeted by the administration because they may not all be engaged in hostilities with the United States.  In fact, members of Jabhat al-Nusra are upset that the United States has targeted them in Syria as they have not done anything to the United States, they simply wish to topple the Assad regime.  As Mr. McCants stated recently on MSNBC, most Nusra fighters just want to fight Assad and do not wish to attack the United States.  But, McCants continued, "[Nusra] answers to Zawahiri, who runs al-Qaeda, and he very much wants to go after the United States."  Given the members of the Khorasan Group are hardened veterans of core al-Qaeda who fit the administration's description of imminence, they would be legally covered under the 2001 AUMF and Article II self-defense.      

     The reports questioning and criticizing the lack of journalistic inquiry to government sources who provided members of the media with the scoop about this so-called fabricated group with no clear evidence of their previous and continued existence are somewhat off base but do raise a few essential questions.  Though the administration appears to be on "sound" legal footing to strike what they refer to as the Khorasan Group, the discussion of imminence and other legal interpretations will doubtless lead to further furor and dissent. 

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