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A Guide to Legal Issues Raised by the Expanding Conflict in Mali

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Friday, January 18, 2013 at 5:08 PM

What is the United States actually doing so far, and what else reportedly is on the table?

1. So far we have agreed to provide airlift support to the French, on their dime.  That is, France is going to pay the United States some $20 million in exchange for the services of C-17s (and possibly also C-5s) that will bear French troops and equipment (armored vehicles, for example) into Mali.

2. France reportedly has asked for surveillance support in the form of both manned and unmanned aircraft, and also for tankers enabling aerial refueling of French air assets.

3. I have seen no claim that the U.S. is actively considering conducting its own kinetic operations in Mali.  I could imagine that changing were the French and Malian forces to suffer catastrophic setbacks.  Hopefuly the question will not arise.  The insertion of U.S. ground forces have been ruled out, however, and I don’t think that would change under any currently foreseeable circumstance.

Does American involvement violate the UN Charter?

No.

Let’s begin with the UN Security Council, which in December 2012 issued Resolution 2085 pursuant to its Chapter VII authorities.  UNSCR 2085 among other things authorized the deployment of “an African-led International Support Mission in Mali (AFISMA)” to “take all necessary measures, in compliance with applicable international humanitarian law and human rights law” in order to, among other things, “support the Malian authorities in recovering the areas in the north of its territory…and in reducing the threat posed by terrorist organizations….”  The resolution expressly references offensive operations.

The AFISMA force had not yet materialized when the extremist groups controlling the north began moving south, and it appeared unlikely that the Malian army would be able to stop them.  On Thursday January 10, Mali’s interim president,  Dioncounda Traore, appealed to France for immediate military aid.  France agreed, and soon began using air assets that already were stationed in nearby African countries, followed by an initial deployment of ground forces.  France sent a letter to the Security Council noting these actions, declaring them to be pursuant to Mali’s request, and asking for accelerated implementation of Resolution 2085.  France’s UN Ambassador later announced that the other SC members had “given their ‘understanding and support’ to France.”  France, in turn, later asked the United States, Britain, Canada, and presumably others as well for various forms of logistical and intelligence support.

Bottom line:  The existing UNSCR does not cover the French action, yet the French action nonetheless is justified by Mali’s consent.  And I think it proper to construe that consent as extending through to the French request for US support that is necessary in order for France to comply with Mali’s request.   As Deborah Pearlstein points out, there is a fuzzy issue here in that the legitimate government of Mali was deposed in a military coup last spring, raising the issue of whether Traore had authority to consent on Mali’s behalf.  I think the answer has to be yes.  As recounted by the State Department here, the coup certainly was condemned by the United States and it resulted in a cut-off of aid (more about that below).  The United States has not also cut off diplomatic relations with Mali, however, nor has France. More to the point, UNSC 2085 treats the Transitional Government very much as the object to be supported by AFISMA, all toward the goal of a transition back to democracy.  I cannot square that with an argument that the Transitional Government cannot speak for the Republic of Mali in an exigency such as this.

Does U.S. involvement violate statutory constraints that forbid aid to states that have undergone military coups and have not yet had a transition back to democracy?

No.

At least since 1997, so-called “section 508” statutory spending constraints have routinely appeared in statutes relating to foreign and military aid.  In brief, these provisions forbid aid to states that have undergone a military coup, until such time as a transition back to democracy occurs.  But all that is beside the point here, for the United States is aiding France, not Mali.  The fact that Mali benefits does not change this.

Does the executive branch have authority on its own to aid France in the ways described above, or might the action instead be justified under the 2001 AUMF?

Probably yes.

The situation of course calls to mind the much-criticized 2011 intervention in Libya, which similarly involved a lead role played by other nations. But the Libya intervention also involved direct uses of force by U.S. assets, including airstrikes from manned and unmanned aircraft.  That’s an important distinction, and though it does not cinch the case it certainly makes the Mali scenario less problematic.  That said, what is the affirmative argument for such authority residing within Article II?  The baseline authority of the Commander-in-Chief to make routine deployment decisions is not enough given the circumstances of armed conflict in Mali (I do think it perfectly clear that a NIAC is underway in Mali).  The foreign affairs power of the President is more pertinent, I think, given the very limited nature of the military’s role here (see the argument above about distinguishing this case from the somewhat similar Libyan scenario in which such an argument was stretched quite far).  Some would argue that in any event the President has Article II power to direct the military into all sorts of small-scale operations of this kind (and some would go further still).  Such claims famously spark fierce controversy, but we can at least say that this instance is on the low-intensity end of the spectrum and hence relatively-more plausible.  It is to me, at any rate.

And then, of course, there is the question of whether France’s action (and hence our support for it) ties in meaningfully with the view that the United States is already in an armed conflict with al Qaeda and its associated forces.  This is a complicated topic, one I’m not going to try to nail down here.  If the answer is yes, then not only might one argue that this bolsters the case for invoking the president’s national self-defense authorities, but it also implicates the 2001 AUMF relating to al Qaeda, thus potentially skipping us past the Article II power question.  But is this fact pattern tied-in in that manner?  There are multiple jihadist groups in northern Mali, with varied links to AQIM. (See here for one discussion) Even as to AQIM itself, there are complex questions as to how to think about it.  Is it part-and-parcel of al Qaeda, an associated force of al Qaeda, or merely co-branded but ultimately distinct?

Complicating matters, Deborah Pearlstein argues that even if we were just talking about AQIM proper, it would still need to be shown, in order to invoke the AUMF, that AQIM had not merely associated itself with al Qaeda but also that it posed a threat to the United States as such (akin to AQAP, which has repeatedly attempted to carry out attacks on Americans).  Even if we accept that standard as the measure of what the executive branch likes to call “co-belligerency” in this setting, however, I’m not sure this is a major obstacle.  It turns on what we think must be demonstrated in order to be able to say that a group has sufficiently targeted the United States in order to qualify under this heading.  As to that, it does not seem to me that the standard ought to be whether the group in question has yet attempted to carry out an attack within or directed at the American homeland.  If the group has attempted or wishes to attack Americans abroad, this ought to suffice.  SecDef Panetta has stated that “while they may not have any immediate plans for attacks [in] the United States and in Europe, ultimately that remains their objective.”  Not having a good reason to doubt that this is so, I think a strong argument therefore can be made that the AUMF extends to AQIM today.  That said, I want to underscore again how murkey and fact-dependent this entire inquiry is, and how much it underlines the desirability of careful thinking about the statutory foundation of current and future counterterrorism activities.

How does the War Powers Resolution fit in?

As an initial matter, if the AUMF does apply then the WPR won’t really matter here (the only interesting issue under the WPR in this setting being whether the 60-day clock for withdrawal has begun ticking).  But let’s assume the AUMF is not best understood to apply, and that the actions of U.S. forces depend on an Article II justification.  What then?  Well, given the Libya precedent one can safely assume the Obama administration will not, on current levels of U.S. involvement, conclude that the clock is running at all at this point (review Harold Koh’s testimony on the statutory meaning of “hostilities” under the WPR here).  The arguments are stronger as applied to this fact pattern, as things currently stand at any rate.  We shall see what is happening in two months; it is possible to imagine a situation in which French and Malian forces–and any others that may later join them–have gotten bogged down, and the pressure for the United States to join in with the direct application of air power increases.

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