Thursday, April 9, 2015

The Breakup of al-Qaeda and US Policy Implications


This article first appeared on The Epoch Times


      There has been very limited reporting in the past week revealing that al-Qaeda’s global leader, Ayman al-Zawahiri is thinking of disbanding the terrorist organization Osama bin Laden founded over two decades ago. Given al-Qaeda’s (and especially Zawahiri’s) waning global influence in the face of the Islamic State group, Zawahiri is purportedly thinking of “relinquish[ing] his authority – or what's left of it – over [al-Qaeda] branches globally and absolving them of their allegiance to him,” citing the Islamic State group's expansion into Yemen and elsewhere.

     As far as U.S. policy is concerned, the disbanding of al-Qaeda, the most well-known and by some estimates, the most deadly terrorist group in the last 20 years, could have a profound impact especially under the guise of the current debate between Congress and the Obama administration over passing a new authorization for use of military force (AUMF) specifically tailored toward the Islamic State group. The administration is currently relying on the 2001 AUMF, originally authorized to specifically fight al-Qaeda and the Taliban in Afghanistan, to conduct operations against the Islamic State group.

     The authorization was narrowly tailored as the sole authority to begin the war in Afghanistan and is now used for President Obama's counterterrorism operations against al-Qaeda's and its affiliates.  Several law makers who had voted for the law in 2001 did not believe that it could also be used to wage counterterror operations across the Middle East and Africa or against a separate entity such as the Islamic State group.

     Many experts have called for the 2001 AUMF to be repealed as it was passed during a period when the threat from international terrorist actors was much less complicated. While the administration has signaled some interest, it has mostly been reluctant to repeal it – likely because the administration favors the statute’s interpretable vagueness, which allows it to operate against al-Qaeda affiliated groups in Afghanistan, Pakistan, Yemen, and Somalia as well as the Islamic State group in Iraq and Syria. The disbandment of al-Qaeda might provide the right political climate for repeal, however. It is understandable that the administration would not want to tie its hands in repealing a law that has allowed it to deter (effectively despite notions to the contrary) and limit terrorist activity that has contributed to the safety of the homeland and U.S. interests.

     However, it would be hard to justify the statute’s applicability if al-Qaeda is no more. On the other hand, the administration is also currently relying on the 2001 AUMF to fight the Islamic State group, which is not going away anytime soon. Even if al-Qaeda disbanded, the administration needs this authorization to stay on the books to continue its operations in Iraq and Syria. According to the administration's interpretation, the 2001 AUMF applies to the Islamic State group because it is the true inheritor of Osama bin Laden’s legacy. This is a peculiar (and factually incorrect) interpretation as it appears the administration is trying to having it both ways - the 2001 AUMF’s concurrent application against al-Qaeda (and affiliates), bin Laden’s organization, and the Islamic State group, considered a splinter organization.

     I will leave the evaluations regarding the potential al-Qaeda breakup’s effect among the jihadi community to scholars much more attuned than I am. It is important to point out that this initial reporting is skeptical and not totally confirmed, but nonetheless important to hash out U.S. policy in the event al-Qaeda dissolves.

     The current U.S. counterterrorism policy has relied heavily on; 1) drone strikes that target specific key leaders in groups in the regions mentioned above that have affiliations to core al-Qaeda leadership; 2) raids by Special Forces; and 3) partnership and training of indigenous forces. The Obama administration has maintained that its drone campaign has worked insofar as it has kept the nation safe, though, it has done little to disrupt safe havens abroad – a key tenet of the administration’s stated goals of counterterrorism efforts.

     Some have raised valid concerns that groups might simply change their names as to escape U.S. targeting authority. If al-Qaeda disbands, could the U.S. still target groups that were previously affiliated? This argument is best summed up by using a World War II hypothetical:
“[I]magine if southern Japan politically broke away from the mainland during World War II but continued to engage in hostilities against the United States and Allied forces. A strong argument could be made that Congress’s declaration of war against Japan would enable the President to continue to use force against both north and south Japan—and a heavy burden would rest on anyone who suggested otherwise. Indeed, we accept that implicit in Congress’s authorization to attack [al-Qaeda] was an authorization for the President to attack not just the group’s leadership, but its component parts as well–including potentially parts that partitioned off but continued to wage hostilities against the United States.”
     However, many of al-Qaeda’s affiliates did not exist at the time the 2001 AUMF was drafted meaning the above hypothetical would not apply in that context. For this reason, some scholars have called into question the current targeting of al-Qaeda’s affiliates under the 2001 law. If the group does break-up, continued military engagement could be legally dubious. Of course, the U.S. can always act in cooperation with partner nations and organizations as a Pentagon spokesperson recently outlined regarding al-Shabaab.

     The president, at the very least, can rely on broad Article II powers in the Constitution, which allow him to act to protect the homeland in the case of imminent danger. However, this is an extremely broad power and could either limit a wide ranging counterterrorism framework previously undertaken in that strikes would have to rely on concrete evidence of an imminent plot rather than merely taking out key leadership – or it could lead to an increase in executive authority in which the president continues his counterterrorism unabated with ambiguous statutory implications. Additionally, given the broad interpretation of the 2001 AUMF as applied to the Islamic State group, the same interpretive approach could be taken toward other terrorist entities formally affiliated with al-Qaeda if the group disbands.

     The prospect that al-Qaeda could disband would also likely reignite the debate over repealing the 2001 AUMF and reevaluating overall counterterrorism authority as alluded to above. The drone program has been subject to intense scrutiny by human rights advocates who believe it is an assassination program that indiscriminately kills innocent civilians. This furor is exemplified by a petition being circulated at NYU Law School to the effect that former Obama administration counsel Harold Koh’s teaching of human rights law is “unacceptable” given that Koh is considered to be the architect of the drone program.

     Should the U.S. continue to target terrorist groups on a rolling basis? Is there a need to develop an entirely new framework, and if so, what should it look like? This is a debate the nation and its representatives in Congress should be having (currently, and) if al-Qaeda does break-up.

     Since there is limited reporting on Zawahiri’s relinquishment of authority, most analysis is hypothetical. For example, consider the prospect of Nasir al-Wuhayshi, al-Qaeda central’s number two and the leader of AQAP, taking the mantel from Zawahiri to keep the group intact. The "new" al-Qaeda would likely look different with some groups, particularly al-Shabaab, potentially not pledging fealty, and new organizations possibly pledging allegiance. Or, on the other hand, consider that the disbandment is just an unfounded rumor. However the overall debate has critical importance in terms of Congress’s fortitude to buck the president in the current AUMF struggle and for the future of burgeoning executive authority. Additionally, it raises questions regarding how the U.S. will continue to fight groups that suddenly materialize and do not fight under the banner of states or even well-established terrorist groups.

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