War Powers

ISIL as al Qaeda: Three Reactions

By Steve Vladeck
Thursday, September 11, 2014, 1:52 AM

Like Bobby, Wells, and Ben, I, too, was surprised to discover that the Obama Administration's legal theory (for the moment) appears to be that the Islamic State of Iraq and the Levant (ISIL) can be targeted under the 2001 AUMF despite its very public split from al Qaeda. That said, I think all three of my friends miss the animating premise of the government's argument in trying to figure out how ISIL could be an "associated force" of al Qaeda (given that it is not currently supporting al Qaeda's hostilities against the United States). What's more, as I explain below the fold, Ben's and Bobby's reactions, in particular, seem to be in at least some tension with their views of how force authorizations should be undertaken, more generally.

First, On my understanding of what little we've heard from the Administration on this front, the claim is not that ISIL is an "associated force" of al Qaeda; the claim is that ISIL is al Qaeda--that is, that ISIL has effectively inherited al Qaeda's mission (and some of its personnel), and so is exactly who Congress was (obliquely) referring to 13 years ago next week when it authorized the President 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." In other words, present-day ISIL is, from the Executive Branch's position, the proper successor to al Qaeda circa 2001, and so is covered by the plain text of the AUMF--and not the "associated forces" theory that has been the source of so much controversy.

The common sense and practical problems aside, whether this theory flies or not turns on both a factual question and a legal question: The factual question is whether this is actually true--that is, whether ISIL really is the true successor to 9/11-era al Qaeda, a question that depends upon a whole bunch of facts to which the public is not (yet) privy. And the legal question is who gets the final say in resolving this factual question. The AUMF, after all, authorizes force against organizations which the President determines to be responsible for the 9/11 attacks (entirely because, when it was enacted, President Bush had not yet publicly acknowledged that al Qaeda and the Taliban were responsible). If the President asserts tomorrow that he has determined that, in fact, ISIL is the group that attacked us on September 11 (back when it was called "al Qaeda"), is that determination reviewable? I have a hard time seeing how--at least practically. In this regard, one might well draw an analogy to the President's "recognition" power (which, coincidentally, is back before the Supreme Court this Term). After all, if Congress declares war against "Germany," case law suggests that it's the President who gets to decide exactly who and what is "Germany." Again, that's not to endorse this argument; it's just to stress that it's a lot more nuanced than these initial reactions have suggested.

Second, leaving aside the factual and legal questions that this interpretation raises (the answers to which, in my view, are not self-evident), there's a larger point that stood out to me in reading Ben's and Bobby's reactions: Bobby calls it "just stunning from a legal perspective," and Ben decries the move insofar as it "dramatically expands [the AUMF's] interpretive scope and deploy[s] it to support a new and open-ended military campaign." Of course, these are some of the exact concerns that Jen Daskal and I raised in response to the proposal, co-authored by Ben and Bobby, for Congress to pass a framework statute delegating to the President forward-looking authority to certify new groups that pose a sufficient threat to the United States--and to use military force against those groups once they have been so certified. As we wrote, the danger of such an approach is that it opens the door to an endless number of "new and open-ended military campaign[s]," as opposed to carefully circumscribed, case-specific use-of-force authorizations the language of which cannot be manipulated to serve ends different from those which Congress initially envisioned.

I suspect Ben and Bobby would respond that, in the case of their proposal, at least, Congress will have expressly delegated such broad and unchecked power to the President--so as to ameliorate the potential separation of powers concerns raised by such an un-obvious reading of the 2001 AUMF. But is the concern in these circumstances that Congress doesn't actually support the underlying mission (which certainly doesn't seem to be the case here), or that Presidents of any and all stripes will exploit any potential ambiguity in statutes authorizing the use of military force? Jen and I always thought it was the latter--which is why we have repeatedly underscored the importance of narrow and precisely tailored force-authorization statutes. Is it too much to hope that our friends are finally coming around to Jen and my view of the better way forward in this space?

Third, and perhaps most importantly, it's worth reiterating the point I tried to make over at Just Security on Monday--that all of this focus on the legal rationales for military force shouldn't obfuscate or excuse our continuing lack of understanding of the threshold questions: What, exactly, is the threat that ISIL poses to the United States, and why is that threat sufficient to justify uses of force beyond conventional self-defense? We heard a little bit on this front in the President's speech last night--but, at least in my view, not nearly enough. And so for all the oxygen that will be consumed in the coming days and weeks over the meaning and scope of the 2001 AUMF, we shouldn't let that drown out these critical (and necessarily antecedent) questions.