The Growing Problem of Extra-AUMF Threats

By Jack Goldsmith
Thursday, September 30, 2010, 11:53 PM

Nine years after it was enacted in response to the September 11 attacks, the Authorization to Use Military Force (AUMF) remains the primary basis for detaining and targeting terrorists who threaten the United States.  The AUMF, however, authorizes force only against the “nations, organizations, or persons” connected to the 9/11 attacks.  In its first filing on detention last year, the Obama administration interpreted the President’s AUMF detention authority to extend to “persons who were part of, or substantially supported, Taliban or al-Qaida forces, or associated forces ….”  The administration has not relied on the “support” prong much, but has instead mostly argued that detainees are “part of” al Qaida or the Taliban, or part of “associated forces,” which (as Curtis Bradley and I have argued, and as some courts have accepted) can be equated with co-belligerency.  So, for example, the government’s brief in al-Aulaqi asserted that al-Qaeda in the Arabian Peninsula “is an organized armed group that is either part of al-Qaeda, or is an associated force, or co-belligerent, of al-Qaeda ….”

Unfortunately, many of the threats the United States faces – threats that have been growing for some time now – do not easily fall within these interpretations of the AUMF. For example, as Judge Bates said in Hamlily (note 17): “‘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 problem, as DHS Secretary Napolitano testified last week, is that “the threat of al Qaeda-style terrorism is 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 clear import of these words and the rest of Napolitano’s testimony is that terrorist threats not easily covered by the AUMF are growing.  An example might be terrorists in the Somali organization Al-Shabaab, which, as Napolitano noted, have “espoused violent, anti-American beliefs.”  Al-Shabaab allegedly has connections with al Qaeda, but as a CFR Backgrounder indicates, “any organizational linkage between the two groups is weak, if it exists at all.”

All of which raises the question of what the Obama administration is doing about this problem.  It has eschewed reliance on Article II authorities for detention.  And while I have speculated that it might be relying on Article II for some targeting matters, the administration has not said so expressly.  If the administration is not relying on Article II for targeting and detaining extra-AUMF threats outside the United States, then that leaves four possibilities, I think: (1) it is interpreting the AUMF (and perhaps related statutory authorities under Title 10 or Title 50) more broadly in secret than in public; (2) it is relying on criminal law authorities (e.g. arrest and extradition); (3) it is relying on third parties for capture, kill, or rendition; or (4) it is not addressing extra-AUMF threats because it thinks it lacks the legal authority to do so.

If the extra-AUMF threats are as serious and growing as Napolitano’s testimony suggested, then these four possibilities, separately or together, probably do not add up to a stable or comprehensive approach to the problem.  The issue was highlighted in Senator Graham’s speech last week at AEI, where he argued that AUMF needed to be updated to deal with new threats.  He also argued – after noting that no new terrorists had been brought to GTMO in years, and that American detention facilities in Afghanistan are scheduled to turned over to the Afghan government – that the United States needed a permanent detention facility for new terrorist captures and interrogation techniques that are within the law but more aggressive than those permitted under the Army Field Manual.  This significance of this latter argument was highlighted this week in reports of a credible terrorist threat in Europe “based on the interrogation of a suspected German terrorist . . . now being held at Bagram Airfield in Afghanistan.”  Would lawful but more aggressive interrogation techniques have extracted intelligence more quickly or effectively?  Where will such suspects be held and interrogated once U.S. detention facilities are transferred to the Afghan government?  What does the United States do when it finds a terrorist suspect who does not fall within the AUMF?  These important questions were raised by Senator Graham’s speech.  I assume they are resolved or being debated inside the administration.  But the public does not know the answers.