Monday, November 17, 2014

Complications Regarding a new Authorization for Use of Military Force (AUMF)

This article first appeared on The Epoch Times


     Congress, in their lame duck period, has a lot on their plate.  Between nominations and passing a budget to keep the government funded, several members of Congress, the president, and many outside government would like to see legislators take up a new Authorization for Use of Military Force (AUMF) to address the military efforts in Iraq and Syria against the Islamic State.  So far, there are six legislative proposals of differing degrees in front of Congress.  In addition to the bills proposed, several legal scholars and experts in the past have written proposals on what a new AUMF should look like.  Recently and more specifically, scholars have provided draft language for a current proposal against the Islamic State (IS, ISIS, ISIL). 

     In tailoring a new legal authority for the United States to fight terrorism overseas, many have debated sunsetting and/or repealing the previous two AUMFs as a provision in a new authorization.  The 2001 AUMF has been the primary legal authority used by the Obama administration to conduct its controversial counterterrorism operations abroad, which included the secretive targeted killing program.  The 2002 AUMF authorized the Iraq War; its language, according to most, is dated because the “continuing threat posed by Iraq,” which at the time was the Saddam Hussein regime and has also been interpreted to be insurgents, is no longer applicable, however, some still disagree on the latter point's current applicability.

     One of the more controversial aspects of the Obama administration’s interpretation of the 2001 AUMF is what is referred to as the "associated forces doctrine."  It is the stated position of the administration that “The United States government is in an armed conflict against al Qaeda and associated forces,” according to then General Council of the Defense Department and now Homeland Security Secretary, Jeh Johnson.  Johnson defined “associated forces” as, “(1) an organized, armed group that has entered the fight alongside al Qaeda, and (2) a co-belligerent with al Qaeda in hostilities against the United States or its coalition partners.”  Additionally, the Justice Department stated in a white paper leaked to the media regarding the authority to target and kill Americans who take up arms against the United States, “The [p]resident has authority to respond to the imminent threat posed by [al-Qaeda] and its associated forces.”

     As some legal scholars have argued, “There is no such notion [of ‘associated forces’] in international law.”  Previous international law doctrine has focused on co-belligerents, but as Gabor Rona, Visiting Professor of Law and Director of the Law and Armed Conflict Project at Cardozo Law School, author of the previous quote, stresses, “[co-belligerency] exists to remove the protections of the law of neutrality when State C interferes in a war between States A and B. But there is no neutrality principle applicable to non-State armed groups, so the US’s doctrine asserting the right to engage against ‘associated forces’ by analogy to the concept of co-belligerency is flawed.”  A key distinction has been made regarding previous conflicts and the current struggle.  Through the lens of World War II, “the United States issued multiple declarations [of war], one each for Germany’s co-belligerents,” according to a policy paper regarding repealing the 2001 AUMF. 

     The aforementioned draft Islamic State-specific AUMF, calls for overtly authorizing force against associated forces (a key difference from the 2001 AUMF, which includes no such distinction, but rather was the work of crafty legal interpretations.)  The proposal states, “The authorization of force in Section 2(a),” which would authorize force against al-Qaeda, the Islamic State, and the Afghan Taliban, “extends to associated forces of the entities listed in section 2(a).”  In a separate policy paper that offers principles to guide a new AUMF, the authors assert, “The statute should specify whether or not the authorization also allows the use of force against ‘associated forces’ of ISIL. If it does, the statute should include a definition of that term that is narrowly tailored to include only those groups that are acting in concert with ISIL as parties to the armed conflict against the United States for which force is being authorized.”  What is more, in an op-ed authored in Sunday’s Washington Post, its three authors, who include law professors who contributed to both proposals referenced above, wrote, “Neither Congress nor the American public has a clear idea whom the United States is fighting or where, especially when it comes to forces associated with al-Qaeda. Any new AUMF should require the president to identify the groups against which force is used, along with related details.”

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     Last week brought a series of frightening news reports regarding the Islamic State and their growing support.  First, in an audio message released by Islamic State leader Abu Bakr al-Baghdadi, the self-proclaimed Caliph declared provinces of his “state” and accepted the oaths of allegiance from various Islamic extremist groups across the globe.  As terrorism expert Aaron Zelin described last week, the groups, which Baghdadi accepted in Algeria, Libya, and Egypt, “could follow the same economic model of sustainability that the Islamic State has pursed in Iraq and Syria over the past couple years.  If they have not done so already, the Libyan and Sinai groups are prime candidates for fully grafting their jihadist networks onto the traditional criminal enterprise networks that have been used for trafficking, smuggling, and other black market activities over the years,” though Zelin notes that these groups do not enjoy the territorial control a la the Islamic State.  Furthermore, Zelin added, “In addition to declaring the annexations, Baghdadi made clear to his associates in Saudi Arabia and Yemen that it is time to start an overt military campaign against the rafidah, a derogatory term for Shiites that literally means ‘rejectionists.’”  Such a call is certainly a threat to US allies and interests in the region warranting some type of action based on past US responses.         

     To make matters worse, the Associated Press reported last week that the Islamic State and al-Qaeda’s official affiliate in Syria, Jabhat al-Nusra (JN), have reconciled to some degree and agreed to a cease-fire.  The two groups, who have been at odds ever since Islamic State leader tried to absorb JN forcing al-Qaeda to expel the then Islamic State in Iraq and al-Sham (ISIS) from al-Qaeda, agreed to coordinate on a tactical level to address threats from the Assad regime and the US coalition bombing campaign.  Additional analysis indicates that the Islamic State could be suffering major setbacks in Iraq and could use assistance from JN.  However, it is not clear if the present cease-fire will engender a broader peace accord as al-Qaeda leader Ayman al-Zawahiri is still at odds with Islamic State leader Baghdadi and JN leader, Abu Mohammed al-Golani similarly dislikes Baghdadi. 

     These new developments present complications in terms of a new AUMF and in the context of defining or authorizing force against associated forces.  Currently, the US is not engaged in an armed conflict with JN, one of the criteria needed in order to satisfy authority under the 2001 AUMF to militarily strike a group.  Despite reports of JN infrastructure being destroyed, so far, all reports indicate the destruction is associated with US targeting a small al-Qaeda cell thought to be sent by core-al-Qaeda and embedded in JN, who pose an imminent threat to US interests – such authority to strike a group posing an imminent threat falls under the president’s Article II constitutional powers and not statutory power such as the 2001 AUMF.  If JN is coordinating with the Islamic State, could they be targeted as some type of associated force?

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     Of the six current Islamic State-specific AUMF proposals pending in Congress, only two make reference to associated forces.  Rep. Frank Wolf’s (R-VA) bill states, “The President is authorized…to use all necessary and appropriate force against…al Qaeda and its regional affiliates, the Islamic State of Iraq and Syria, al Shabaab, Boko Haram, and any other emerging regional terrorist groups…regional affiliates.”  Senator Tim Kaine’s (D-VA) bill authorizes force against “forces associated with” the Islamic State.  Senator Kaine’s bill also provides additional measures to more clearly define associated forces through reporting measures.

     It is immensely important which bill is voted on and approved in Congress.  The 2001 AUMF was thought to be narrowly tailored at the time with members of Congress significantly scaling back the original language the administration wanted to include in it.  As Jane Harman, president and CEO at the Wilson Center and former congresswoman stated last week, “This isn’t the fight those of us who voted for those AUMFs [2001 and 2002] intended to authorize,” in relation to the administration using them for legal cover against the Islamic State presently.  The current list of associated forces is classified, which infuriates many members of Congress because they nor the American people know with whom the US is at war.  As the Islamic State is attempting to grow, their affiliates will eventually, if they have not already, pose a threat to the US and its allies and interests as well.  How these affiliates are addressed as a matter of US policy and legal authority is of the utmost importance.

     The United States is winding down its longest war in history and simultaneously beginning a new military offensive expected to last for years - almost certainly cementing a perpetual state of war against extremists.  In spite of the crafty legal interpretations of the administration, current proposals for a new AUMF must include some type of limit for fighting extremism, otherwise, the US armed forces and covert operations will likely be operating in Algeria, Libya, and elsewhere if organizations in these jurisdictions are interpreted as “associated forces” of the Islamic State and pose a threat to the US.  The doctrine of state sovereignty is continually losing its protection as the US has used international law to permit force against terrorist actors in Syria “in self-defense of Iraq or, much more controversially, because Syria is unwilling or unable to mitigate threats against the United States emanating from its borders,” according to the aforementioned op-ed in the Washington Post. 

     Several human rights activists from within the United States and abroad would like to see the American counterterror efforts become limited.  Ambiguous language combined with developments from last week could allow this and future administrations to wage war across the entire globe unchecked.  It is imperative that the new legal framework for combating terrorist actors is precise and pertinent, otherwise, the United States will be the unbridled world’s police/terrorism task force.                 

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