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AQAP Is Not Beyond the AUMF: A Response to Ackerman

Tuesday, April 24, 2012 at 10:12 AM

Is al Qaeda in the Arabian Peninsula (AQAP) so distinct from the original al Qaeda network (“core al Qaeda”) that the use of force against AQAP cannot be justified, as a matter of U.S. domestic law, under the 9/18/01 AUMF?  More to the point, would President Obama necessarily have to rely upon a claim of independent Article II authority were he to grant an apparent request from CIA Director Petraeus for permission to use the “signature strike” model for targeting in Yemen?  So argues Bruce Ackerman in this op-ed, which ran in the Washington Post this weekend.  Ackerman adds that it would be a mistake, and unjustifiable, to make such an Article II claim.

I think that Ackerman is mistaken on both counts.  And since these are issues I’ve been thinking about in some detail in connection with my forthcoming book, I want to set forth my reasons at some length below.

AQAP as Part-and-Parcel of Core Al Qaeda.  Ackerman begins from the premise that the existing 9/18/01 AUMF was meant by Congress not to apply to all terrorist threats, but rather to the entity responsible for 9/11 and those harboring that entity.  I agree with that reading up to a point; the AUMF on its face is certainly not a blanket authorization to use force against just any terrorist threat.  But it does not follow that an attack directed at AQAP lies beyond the AUMF’s scope. 

AQAP is not some entirely distinct entity that simply happens to be like-minded and has decided to adopt core al Qaeda’s brand for cache’s sake.  It is, rather, the direct and immediate manifestation of core al Qaeda’s long-standing operational presence in Yemen.  Over the years, core al Qaeda dispatched no small number of operatives to Yemen and Saudi Arabia, with varied results over time in the face of varied efforts by the regimes in Sana’a and Riyadh to suppress them.  Efforts by these individuals to build a sustained organizational presence have waxed and waned, and gone under different names along the away.  AQAP is the most recent name, and by far the most successful effort to date, expanding its ranks through local recruitment and building complex ties to local tribal leaders who share an antipathy for the central government’s authority.  In keeping with core al Qaeda’s emerging (and necessity-driven) strategy of decentralization, it seems clear that AQAP does not think it necessary to obtain core al Qaeda’s approval for its day-to-day operations (nor could it easily do so, given the successful efforts of the United States and others to make such communication as risky as possible).  Yet there in no mistaking the continuing ties and fealty that run from AQAP to the core leadership.  Before his death, for example, AQAP reportedly sought bin Laden’s approval to elevate Anwar al-Awlaki’s status within the group—approval that bin Laden denied.  More recently, and more to the point, AQAP’s emir Nasir al Wuyashi (himself an al Qaeda member who previously served directly under bin Laden) had this to say to Ayman al Zawahiri after bin Laden’s death:

I give you allegiance of obedience in good and hard times, in ease and difficulty, in following the Book of Allah and the Sunnah [traditions] of Allah’s Messenger, Allah’s peace and prayer be upon him, and in fighting the enemies of Allah as much as I can – myself and … your loyal soldiers who are with me in the front of the Arabian Peninsula….”

I don’t mean to deny that there are hard questions about how one defines the boundaries of al Qaeda in light of its clandestine nature and diffuse organizational structure.  Indeed, in cases like that of al Shabaab I think this difficulty is very significant.  But AQAP is, relatively speaking, an easier case.

AQAP as an “associated force” encompassed by the AUMF.  If AQAP is not best understood to be part-and-parcel of core al Qaeda, it does not follow automatically that AQAP is beyond the scope of the AUMF.  The question then becomes whether the AUMF is best read to encompass, implicitly, those entities that join al Qaeda as “associated forces” functioning as co-belligerents in fighting the United States, and if so whether AQAP is such a group.  Whether the AUMF does include an “associated forces” has certainly occasioned much debate, and important questions remain to be addressed as to the boundaries of the concept.  But it is worth noting that in the few GTMO habeas cases to present the question, the courts have construed the AUMF to include an “associated force” concept encompassing at least those groups other than core al Qaeda and the Afghan Taliban who are engaged in conflict against U.S. forces in Afghanistan (see here for the D.C. Circuit’s easy embrace of the concept as applied to the forces of Gulbuddin Hekmatyar, for example).  The issue this leaves open is whether the same model should apply by extension to groups located outside Afghanistan whose attacks on America occur away from the hot battlefield.  I think there is room and need for debate on that topic, but for now the important point is that it is far from obvious that the situation is excluded under the AUMF.

Criticizing the proposed strikes as being beyond the AUMF requires similarly criticizing many of the numerous strikes in Yemen that have occurred over the past few years.  Because he frames his argument around the CIA request for signature-strike authority, Ackerman is in the awkward position of explaining why the numerous airstrikes already conducted (by both the CIA and the US military) against AQAP targets in Yemen over the past several years (at least 12 already this year, and at least 29 since late 2009) did not raise this same issue.  His answer is that the prior strikes were limited to persons who “may have had personal links to the original al-Qaeda group, based in South Asia, that targeted New York and Washington in 2001,” and by way of example cites Anwar al-Awlaki.  But the al-Awlaki example cuts the other way.  He had no such direct links to core al Qaeda (not beyond the links inherent in being part of AQAP, at any rate).  The most accurate characterization of the existing set of strikes, I think, is to say that some did indeed targeted individuals with a personal and direct tie to core al Qaeda (such as Abdul Mun’im Salim al Fatahani, linked to the attack on the Cole in 2000), but many targeted leading AQAP figures who lacked such personal ties (such as al-Awlaki) and many others targeted mere AQAP “foot soldiers.”  Put simply, the Obama administration has long since crossed the line that Ackerman would draw with respect to the AUMF.  (Interestingly, I note that the pattern of US strikes in Somalia may actually fit Ackerman’s model—i.e., those strikes may indeed be limited to al Shabaab members who are in fact identifiable as core al Qaeda operatives).

Which way does the NDAA FY ’12 cut? The NDAA famously confers explicit detention authority not just as to al Qaeda but also as to “associated forces.” Ackerman suggests that one cannot infer anything from this since the NDAA states that “[n]othing in this section is intended to . . . expand the authority of the President or the scope of the Authorization for Use of Military Force [of September 2001].” But given that the administration for a few years now has been using deadly force against AQAP under color of the AUMF on the theory that AQAP is either part of or an associated force of al Qaeda—and given that Congress was certainly aware of this at the time it enacted the NDAA—the language Ackerman quotes if anything seems to cut the other direction, favoring the conclusion that Congress does not view AQAP as beyond the original AUMF.

In any event, what is so bad about invoking Article II’s national self-defense theory as to a group that has repeatedly attempted to kill Americans?  Let’s assume that Ackerman is correct and that the AUMF does not apply to AQAP.  That would not automatically make the use of force against it problematic from a separation of powers perspective, for such uses of force might be justified under Article II.  Ackerman takes the contrary view, writing that the president should have “to return to Congress, and the American people, for another round of express support for military campaigns against other terrorist threats.”  This is too broad.  In circumstances where the “terrorist threat” in question is an organization that has already attempted to kill Americans on multiple occasions and is plainly intent on doing so again when the opportunity presents itself, the president just as plainly has both the authority and the obligation under Article II to act to defend the country, with or without an explicit legislative authorization to do so.  To give the most obvious example, President Clinton did not wait for an AUMF authorizing him to use force against al Qaeda in 1998 after the East African embassy bombings—and rightly so.

Using force in self-defense against AQAP does not open the door to an endless war on terrorism.  Ackerman attempts to taint the Article II self-defense argument by labeling it a “Bush-era claim” of “unilateral power…to open up new fronts in an endless war against terrorism,” adding that as a “constitutional lawyer” Obama must of course know “the weakness of such claims” and warning the president that using this theory “would profoundly alienate his base just when he needs it.”  That last point may be true as a descriptive matter, but I hope that when presidents confront the possible need to use military force in national self-defense they make a conscious effort to minimize the weight given to the likely impact of the decision on their reelection prospects. As for the other points, I think they set up a straw man.  As I’ve explained, using force against AQAP in no way commits the president to an open-ended war on terrorism writ large, delinked from al Qaeda.

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