The Legal Consequences of Islamic State + Al Qaeda Cooperation, and Implications for AUMF Reform

By Jack Goldsmith
Friday, November 14, 2014, 10:20 AM

Deb Riechman at AP is reporting:

Militant leaders from the Islamic State group and al-Qaida gathered at a farm house in northern Syria last week and agreed on a plan to stop fighting each other and work together against their opponents, a high-level Syrian opposition official and a rebel commander have told The Associated Press. …

Their new agreement, according to the sources in rebel groups opposed to both IS and Nusra Front, would involve a promise to stop fighting and team up in attacks in some areas of northern Syria.

Cooperation, however, would fall short of unifying the rival groups, and experts believe any pact between the two sides could easily unravel. U.S. intelligence officials have been watching the groups closely and say a full merger is not expected soon - if ever.

It is hard to know what this means.  But if IS and Nusra Front “work[ing] together against their opponents” includes working together against the United States or its military forces in the region, and if, as many believe, Nusra Front is part of or very closely related to al Qaeda, then the 2001 AUMF would more straightforwardly than previously thought authorize the President to use force against IS.

IS’s sliding in and out and in again to 2001 AUMF coverage highlights how far out of sync the 2001 AUMF is with modern counterterrorism challenges.  That fact alone argues for updating the 2001 AUMF.  And if indeed IS has in some sense joined forces with al Qaeda in using or planning to use force against the United States (the AP story does not say this), then at least two law-related consequences follow, in my opinion:

First, the President’s hand is strengthened in his negotiations with Congress about a new or revised AUMF.  There are many reasons to update the 2001 AUMF, but the President would have an easier time holding firm against any new AUMF details he dislikes, for he could always walk away and rely, with less legal controversy, on the 2001 AUMF.

Second, there is a debate about whether Congress should authorize force against IS separately from, or in conjunction with, an effort to update the 2001 AUMF.  If IS and al Qaeda are working together, this argues, I think, for a combined authorization approach, as Bobby, Ben, Matthew, and I recently proposed.  Congress should consider all at once the two related terrorist organizations, and what to do about them going forward, and how to do it, and under what authorities.  Otherwise, if Congress merely authorizes force against IS, the President could pick and choose which authorization to use (as we have seen him do recently in relying on the 2001 and 2002 AUMFs), and he might be inclined to do this if the scope of or the reporting or oversight provisions of the IS AUMF differed from the 2001 AUMF.  Even if Congress prohibited such picking and choosing in a new IS AUMF, integrating an IS AUMF with the update of the 2001 AUMF in the same legislative act would create substantive and procedural/oversight consistency among the authorizations.  If the relationship between IS and Al Qaeda is fluid, the USG should have clarity of legal authorities for planning purposes irrespective of day to day relations between those organizations.