More on the Growing Problem of Extra-AUMF Threats

By Jack Goldsmith
Wednesday, December 1, 2010, 6:18 PM

Michael Leiter, the Director of the National Counterterrorism Center, gave an important speech today at CSIS that touched on many topics, including an overview of the foreign and homeland terrorist threat, what the government is doing about it, and how the nation should respond to an attack if it occurs.  In speaking about the growing independence of al Qaeda affiliates, Leiter said (around the seven-minute mark) this:

These affiliates have no longer simply relied upon their linkages to al-Qaeda senior leadership in Pakistan, but they have in fact emerged more as self-sustaining independent movements and organizations.  Now they still have important tentacles back to al-Qaeda senior leadership, I don’t want to downplay that, but in many ways, especially in the case of al-Qaeda in the Arabian Peninsula, operate with a greater level of independence and, frankly, they operate at different pace and with a different level of complexity than does al-Qaeda senior leadership. . . . .

This passage highlights once again the growing problem of extra-AUMF threats.  Judge Bates, who is presiding over the Al-Aulaqi case, said last year in Hamlily that the government “has the authority to detain members of ‘associated forces’ as long as those forces would be considered co-belligerents under the law of war,” but added that “‘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.”  In its brief in the al-Aulaqi case, the government did not specify precisely how al-Qaeda in the Arabian Peninsula (AQAP) – the group in which Al-Aulaqi has an operational role – relates to al-Qaeda for purposes of the AUMF (and thus for the legality of targeting under the AUMF).  Rather, it said, somewhat awkwardly: “The United States has further determined that AQAP is an organized armed group that is either part of al-Qaeda, or is an associated force, or co-belligerent, of al-Qaeda ….”

One obvious question is whether AQAP, which Leiter describes as operating with “a greater level of independence” from al-Qaeda, is closely enough associated with al-Qaeda, perhaps by what Leiter calls “tentacles,” to make it a “part of” al-Qaeda or an “associated force” or “co-belligerent.”  I assume that it is.  But Leiter's more general point about "self-sustaining independent movements and organizations" that threaten the United States highlights yet again the growing irrelevance of the AUMF to these rising threats.  And the speech raises, once again, the questions (a) what legal authorities, if any, is the government relying on to address these extra-AUMF threats?, and (b) wouldn’t it be prudent for Congress to update the government’s authorities to deal with these evolving threats -- threats that, as Leiter today made clear, are quite different from the ones Congress had in mind when it enacted the AUMF in September 2001?