More on Defining the Enemy at the Group Level: Steve Vladeck Replies, and I Respond

By Robert Chesney
Monday, September 13, 2010, 10:28 PM

Earlier today I posted some thoughts in response to Steve Vladeck's commentary on the Graham bill, focused on the question of which groups ought to fall within the scope of the government's authority to use military force.  Steve had expressed concern about the use of the phrase "associated forces" in addition to explicit references to al Qaeda and the Taliban, and I responded that such language spoke to a pair of problems: the difficulty of defining the organizational boundaries of al Qaeda and the Taliban, and especially the existence of co-belligerent organizations such as the Haqqani Network.  Steve was kind enough to send the following reply, with permission for me to post it. 

Steve writes:

I think it’s important to differentiate between two distinct questions here.  The first is whether the Graham bill is authorizing detention beyond the scope of the AUMF.  The second is whether, to the extent the bill does so provide, it is wise as a matter of policy and/or permissible as a matter of law.  

Of course, the lines at the margins separating al Qaeda and the Taliban from “associated forces” are—and will be—quite blurry. And I do not (and did not) mean to suggest that our troops are powerless to deal with those they encounter on the battlefield.  But the one sense in which the otherwise ambiguous AUMF is actually specific is in pegging the use-of-force authority to those groups that were responsible for the September 11 attacks.  The specific language of the statute authorizes force against persons or groups that “planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.”  Note how the last clause clearly contemplates affiliated organizations, and yet limits the government’s authority to those groups that “harbored” the organizations or persons responsible for 9/11 (an odd word choice if it meant to confer the authority now claimed).  I didn’t write the statute, but I have a difficult time seeing how it can be fairly read to extend to any group that is today providing any support to al Qaeda or the Taliban, without showing some connection between that group and September 11. We may think that this is a legalistic distinction in a practical world, but, for purposes of this conversation, the first question is about the relationship between S. 3037 and the AUMF. Its wisdom aside (for the moment), I think it is clear that the Graham bill, as currently drafted, would dramatically expand the government’s detention power as compared to what was Congress initially authorized.

As for the wisdom / legality of the “associated forces” provisions, I don’t have much to add to what I wrote initially. Let me just emphasize that I don’t share Bobby’s optimism that the debate over deference “may not be worth the candle.”  If you have a case where the facts are conceded, and the only issue is the relationship between the group of which that detainee is a member and al Qaeda or the Taliban, everything turns on the degree of scrutiny to which the government’s finding of “association” will be subjected.  And nothing in the Graham bill contemplates that the detainee will have any opportunity to contest the government’s “notice,” let alone a meaningful one. (Indeed, I think we all agree as to these shortcomings; we just attribute differing levels of significance to them.)  Congress may decide that it wants to expand the scope of the government’s detention authority. As I noted, that’s a decision that it is entitled to make, so long as the authorization is within constitutional limits. But if it so chooses, it should not (1) pretend that it’s not going beyond the AUMF when it is; or (2) cut out the ability of the courts meaningfully to review whether the identified “associated forces” really are affiliated with al Qaeda or the Taliban.

I think the field of disagreement here is rather narrow.  Let me explain.

On the range of groups covered by the proposed language: 

In my original post I distinguished between two scenarios that might be covered by the "associated forces": groups that are co-belligerents of al Qaeda and the Taliban in the traditional sense that they are actively engaged in trying to kill U.S. forces in the field in Afghanistan, and groups that do not fit this description but instead have affiliated with al Qaeda or the Taliban to the point that one can at least debate whether they are simply part of al Qaeda or the Taliban. 

It seems to me that there ought to be little or no dispute about the first category, and I don't have the impression Steve is particularly concerned by it.  That is to say, it seems we should all be able to agree that the United States should have authority to use force against those groups that use force against it irrespective of whether the authority specifically derives from the original AUMF, from Article II authority to use force in self-defense (whether standing alone or collateral to the authority to be in Afghanistan in the first instance pursuant to the AUMF), or otherwise.  On this view, the language in the might or might not be an extension of the AUMF's scope, but that ought not matter much. 

The real issue, it seems, is the other category in which some group that is not a conventional co-belligerent as described above affiliates with al Qaeda and thus might be said to be simply part of al Qaeda itself.  Steve says that these groups can't count under the original AUMF absent a tie-in to 9/11, which if true would sharply limit the prospects for citing the AUMF as a basis for going using force against any entity that was not already intertwined with al Qaeda prior to the attacks.  I need to think about this more deeply, but I'm not immediately persuaded by this.  The AUMF does certainly require a nexus with the 9/11 attacks, as Steve says, but the full sentence specifies at the end that the authorization is prospectively-oriented in the sense that its purpose is to prevent further attacks:

That the President is authorized 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, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

If we assume for the sake of argument that some particular group comes along and merges with al Qaeda to some adequate degree, I think that the group from that point forward is within the AUMF's scope as currently written.  The real issue is how to define the degree of merger that is necessary to justify this conclusion; ideological sympathy should not be enough.  Ironically, then, I would conclude both that the Graham bill is not truly different in scope from the AUMF, and also that it is not particularly helpful in addressing uncertainty about how much merger is enough.  It might be better, in other words, to flesh out the "associated forces" concept with at least some substantive standards, perhaps along the lines of a direction-and-control test. 

As to Steve's points on the deference mechanism:

I certainly agree that in the scenario Steve describes everything will turn on the degree of scrutiny--but I also think that there is not likely to be much difference in actual practice between the degree of scrutiny a judge would bring to bear in the absence of this mechanism and that which a judge would bring to bear with it.