By Dan Gettinger
There is a storm brewing in Washington over the power to wage war. In a hearing on Capitol Hill last Thursday, the Senate Armed Services Committee heard arguments about the Authorization for Use of Military Force (AUMF), the 2001 legislation that gave President Bush the authority to wage war against al-Qaeda. However, the international terrorist organization has today evolved from the centrally-led hierarchy of the last decade to a number of far more disparate and diverse groups. At stake is the Obama administration’s ability, as the LA Times reported last March, to intervene using drones in conflicts such as Syria and, broadly, the authority that Congress has to declare war.
The SASC hearing was upsetting for many of those present. Even experienced national security lawyers like Jack Goldsmith, a Harvard Law Professor and author of Power and Constraint, admitted about the hearing, “I thought I knew what the application [of the AUMF] meant, but I’m less confident now.” The hearing revealed the full spectrum of groups that the Administration and DOD lawyers consider targetable under the current provisions of the AUMF. The following is an exchange between Senator Donnelly, an Indiana Democrat, and several DOD lawyers concerning the powerful Syrian al-Nusra Front:
Donnelly: Would you call the al Nusra front in Syria an AQ affiliated terrorist group?
Sheehan: Yes sir, I would.
Donnelly: Would you say that the AUMF applies to the al Nusra front? . . .
Taylor: As with many things with Syria, we’re looking very hard and very carefully and I don’t have a definitive answer for you at the moment.
Donnelly: . . . Would we have the ability to act against al Nusra today under the AUMF?
Sheehan: Yes sir, we’d have that ability to act against al Nusra if we felt they were threatening our security. We would have the authority to do that today.
Donnelly: Do we feel today that al Nusra is threatening our security?
Sheehan: I don’t want to get in in this setting for how we target different groups and organizations around the world.
Excerpt courtesy of Lawfare Blog
Under the provisions of the 2001 Authorization for Use of Military Force, the President is permitted 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”
To this end, the United States currently has multiple drone programs running, such as surveillance over Iran and Libya, combat missions in Afghanistan and targeted strikes in Yemen, Pakistan and Somalia. Some Senators, such as John McCain, seek to expand these provisions, arguing that the “dramatically changed landscape that we have in this war on Muslim extremism and Al Qaeda and others” requires a new set of rules.
The military is in favor of keeping the Authorization as it stands. Michael Sheehan, the assistant secretary of defense for special operations, said in the recent hearing that “as of right now, it suits us very well,” and added that the war against al-Qaeda could last “at least 10 to 20 years.” The war in the next two decades is likely to take the form of covert operations and drone strikes run out of a constellation of forward operating bases strategically placed in countries like Djibouti.
In October, 2012 the Washington Post concluded a three part series on the use of drones by the Obama administration with an article on the American base in Djibouti that is the hub for drone operations in the Middle East and the Horn of Africa. At least sixteen times each day at Camp Lemonnier, a former outpost for the French Foreign Legion, drones take off for operations in East Africa or, more often, in Yemen. As the “busiest drone base outside the Afghan war zone,” Camp Lemonnier offers “a model for fighting a new generation of terrorist groups” and a glimpse into the secretive world of covert counter-terrorism operations. It is a world into which the public receive only fleeting glances but one that is at the center of the debate over the future of American military intervention and the status of our common enemy.
What is an ‘associated force’?
At the heart of the testimony on Thursday and of the debate over the AUMF is the ambiguous definition of which groups and persons constitute an ‘associated force,’ thereby making them targetable. In March of 2009, the Obama administration submitted a court brief in which they first use the term ‘associated force’ to describe their extension of the AUMF powers:
The President also has the authority to detain persons who were part of, or substantially supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces.
Confusingly, theterm ‘associated force’ never appears in the actual AUMF legislation; it serves as an ambiguous shorthand to describe anyone who has aided those who perpetrated the 9/11 attacks. Many fear that retaining the malleable standards for target qualification will result in a ‘forever war.’ In Hamlily v Obama, a case that affirmed the administration’s use of ‘associated force’ as part of AUMF, Judge Bates qualified that, “‘associated forces’ do not include terrorist organizations who merely share an abstract philosophy or even a common purpose with al-Qaeda – there must be an actual association in the current conflict with al-Qaeda or the Taliban.’” The difficulty lies in the fact that the threats to the United States, as DHS Secretary Janet Napolitano noted, are “not limited to the al-Qaeda core group, or organizations that have close operational links to al-Qaeda. While al-Qaeda continues to threaten America directly, it also inspires its affiliates and other groups and individuals who share its violent ideology and seek to attack the United States…”
The al-Qaeda emerging today is no longer the hierarchical organization based in Afghanistan and Pakistan but rather comprises of several tiers with varying degrees of affiliation with the official al-Qaeda group. The offshoot based in Yemen, al-Qaeda in the Arab Peninsula (AQAP), has been the most targeted core-affiliated group, particularly after their several attempts to attack American soil. However, some third-tier terror groups are also supplanting second-tier groups like AQAP. A 2011 report by the Center for Strategic and International Studies describes how, after ten years of ‘degrading’ the al-Qaeda core organization, “policymakers grew more concerned about cells and individuals that were not regularly associated with al-Qaeda or its affiliates but that drew clear inspiration and occasional guidance and support, from the groups.” The 2012 assassination of Christopher Stevens, the American Ambassador to Libya, offers a recent example of the expanding and elusive character of terrorist threats.
Robert Chesney, a professor at the University of Texas School of Law, who was also present at last week’s SASC hearing, writes that “the general thrust of these changes [within al-Qaeda] has been to weaken the central organization relative to an emerging set of regional organizations that may share al-Qaeda’s brand but are not necessarily responsive to its direction and control.”Chesney goes on to explain how decentralization is central to the survival of al-Qaeda and that the growth of these localized groups that are based on the model of al-Shabab (Somalia) or Boko Haram (Nigeria) will continue.
While terrorist groups differ in their individual goals and connection with core or affiliated al-Qaeda branches, the move toward decentralization is not without supporters among some “influential theorists of jihad- most notably Abu Musab al-Suri. Mustafa Setmariam Nasar, known as al-Suri, is a Syrian member of the al-Qaeda core and regarded as a key strategic thinker of the jihadist movement. Radicalized in the Syrian Muslim Brotherhood, Setmariam served as a lecturer at al-Qaeda training camps in Afghanistan before the fall of the Taliban and is linked to the planning of the 2004 Madrid bombings. However, he his most known for the strategic concept of “‘individual terrorism’” that he intends to “replace the hierarchically orchestrated terrorism of Al Qaeda.”
The authors of Abu Musab Al Suri: Architect of the New Al Qaeda, Paul Cruickshank and Mohannad Hage Ali, argue that Setmariam’s work has “made a very significant impact” in the face of the destruction of the centralized organization with its training camps and bureaucracy in Afghanistan and, more recently, Pakistan. This concept, familiar in the United States as “‘leaderless resistance,’” “maximizes operational security, as one cannot unravel a network after identifying one or more key nodes when there is no network.” The rise of Islamists in Mali, the attack on the American Embassy in Libya, and the infiltration of radical Islamists among the rebels in Syria, all appear to support the argument that the organization of al-Qaeda is becoming more diffuse, drawing inspiration and support from domestic events and causes rather than the unifying notion of ‘global jihad.’
Two More Decades of War
“For you to come here and say we don’t need to change it or revise or update it, I think is, well, disturbing… I don’t blame you because basically you’ve got carte blanche as to what you are doing around the world.” Senator John McCain, Arizona
It shouldn’t come as a surprise that the Obama administration believes it has the power to wage war outside the ‘hot’ battlefields of Afghanistan. In an April 2012 speech to the Wilson Center, John Brennan, who was then the national security adviser to President Obama and now serves as the chief of the CIA, said that the President has “always been clear that the end of bin Laden would neither mark the end of al-Qaeda, nor our resolve to destroy it.” The decimation of the central leadership of al-Qaeda has resulted in a shifted strategy that is in some ways more dangerous than a centrally run core. Nevertheless, last week’s hearing revealed, not only the expansive view the administration holds on targetable threats, but the very real prospect that this war could occupy the first three decades of this millennium.
While it is unclear whether the Obama administration has a counter-terrorism strategy that envisions ten to twenty more years of war, the current ambiguity about the status of the war is untenable. A group of national security lawyers who testified last week, including Robert Chesney and Jack Goldsmith, argued that Congress must take a more active role in managing the designation of threats under the AUMF. While the legislation is undoubtedly out of date, it provides a useful limit on Executive branch speculation about the threat level of different groups.
The covert war is expanding. The recommendations made at last week’s hearing could hopefully stem the seemingly flippant attitude of Michael Sheehan, the DOD’s Assistant Secretary for Covert Operations. While the current provisions of the AUMF may suit his vision of another decade or two of war, for many of those who attended last week’s hearing, not to mention much of the public, this notion is upsetting. Nevertheless, the openness of the testimony came as a bit of fresh air considering the usually oblique attitude of the Administration and the military. These kind of select vistas into the administration’s way of doing business, such as the DOJ White Paper or occasional speeches by national security head honchos, are an unsteady mix of planned public revelations and undignified missteps from a secretive administration. Whatever the mode of presentation, more questions remain than answers. Does the administration have a global strategy for countering al-Qaeda? Are the apparently imminent drone strikes in Syria part of this strategy? The decade of war that President Obama declared in his second inaugural address to be coming to a close, seems, to most observers, likely to continue.
“I’m just a little old lawyer from Brunswick, Maine, but I don’t see how you can possibly read this to be in comport with the Constitution… Under your reading, we’ve granted unbelievable powers to the president and it’s a very dangerous precedent.” Senator Angus King, Maine
Judging from last week’s hearing, Congress has seemingly decided to try and pry some answers to these questions out of the Obama administration. The stakes are obvious, having grown higher and sharper as the covert war has expanded in the sunset of the Afghanistan war. Understanding this legal debate and the evolving strategic situation determines how this country deploys it’s forces abroad, the kinds of military technologies that we invest in, and the degree of oversight that Congress has over the use of force by the Executive Branch. While the outcome of this debate will likely result in some form forever war against terrorism, the question remains as to whether it will be conducted in the shadows of ambiguity or limited by some degree of Congressional observation.