Steve Preston's Speech: On Associated Forces, Self-Defense, and AUMF Refinement

By Robert Chesney
Friday, April 10, 2015, 6:30 PM

The speech DOD General Counsel Stephen Preston delivered today at ASIL was quite interesting on many scores, including the scope of the "associated forces" concept, the nature of America's self-defense claim as to force in Syria, and as to AUMF reform.

Associated Forces under the 2001 AUMF: Preston emphasized two things about the statutory concept "associated forces."

First, he favorably referenced the definition of associated forces provided by his predecessor Jeh Johnson, which in substance requires that a potential associated force be (i) an organized armed group (a Tadic-friendly formulation) (ii) that has in some fashion "entered the fight alongside" AQ and (iii) that is engaged in hostilities against either the United States or its coalition partners. My only comment here is that it sure would be useful to know who counts as a coalition partner given the either/or nature of that third part of the test.

Second, Preston emphasized that under this heading the U.S. military is "currently" engaging in "direct action (that is, lethal or capture operations)" only against AQ, the Afghan Taliban, certain other groups in Afghanistan, AQAP, members of AQ in Somalia and Libya (a formulation that is different from saying that direct action is used against al Shabaab as a whole, for example), al Nusrah, the distinct AQ outfit in Syria known as the Khorasan Group, and ISIL. "There are no other groups," he said, "against which the U.S. military is currently taking direct action under the authority of the 2001 AUMF." Fair enough. It does leave some interesting questions unanswered, though, including whether there are any other groups that (i) have been determined to be an "associated force" but that are not the subjects of "direct action" conducted by the military at the current time (or at the time of the SFRC testimony that Steve references in his speech), (ii) are currently subject to direct action either under color of Article II standing alone (I assume not, but the formulation given was conspicuously AUMF-oriented, so the question does arise) or under color of covert action authority combined with Article II (the formulation given was not just AUMF-specific, but U.S. military-specific, for understandable reasons).

International Law and the Use of Force in Syria. In the third section of his speech, Preston observes that our use of force within Syria is a matter of Article 51 self-defense both as a collective matter (against ISIL on behalf of Iraq) and as a matter of American national self-defense. The former claim is not surprising at all, but the latter is more interesting. It seems to me clearly relevant to make that argument at least insofar as the strikes against the Khorasan Group is concerned, since as I understand it those strikes are motivated by a desire to prevent that particular target from engaging in external operations against the United States (among others, perhaps). If the claim of national rather than collective self-defense also is being made as to ISIL, then it gets a bit trickier. One version of that claim might rest on the argument that ISIL as AQI had been very much involved in attacking Americans, and thus the government might take the view that the resulting self-defense authority is sticky over time despite the period of U.S. withdrawal from Iraq and the change from AQI to ISIL. Another version of the argument might rest on the view that ISIL has in fact killed Americans (the journalists it murdered) and is motivated to kill more if given the opportunity.

The Future of the 2001 AUMF. Steve put considerable weight on the President's oft-stated claim that he wishes to "refine, and ultimately repeal" the 2001 AUMF. Indeed, he clarified that this was a topic the White House would like to take up with Congress after passage of an ISIL-specific AUMF. Indeed, he was at some pains to note that the ISIL AUMF might even become a model for what a "refined" 2001 AUMF might end up looking like, with an emphasis on the White House draft's much-criticized prohibition on sustained offensive ground combat operations, and the general idea that the goal should be to authorize enough, but not too much, force. As to that: having enough but not too much force is of course a very desirable goal, in general. The hard question, though, is whether it is wise to try to write that balance into a statute, as opposed to authorizing such force as the president determines is necessary to meet the stated goal. The problem, it seems, is that the "president" empowered to make that decision will change eventually, and President Obama does not want to bequeath to that person an AUMF that can support substantial ground operations. Given GOP control of Congress, I think it very unlikely that we will see any actual legislation narrowing the 2001 AUMF in such a way. In short, there will no doubt be lots of AUMF talk (both as to ISIL and as to refinement of the '01 AUMF), but likely no more than talk.