Al Qaeda in the Arabian Peninsula (“AQAP”) has been much in the news this year thanks to the attempted Christmas Day Bombing last December, the ACLU/CCR lawsuit challenging the government’s alleged plans to use lethal force against U.S. citizen Anwar al-Awlawki, and the narrowly-averted airmail bombings just last week. From a legal perspective, one of several interesting questions associated with AQAP is whether it falls within the scope of the September 18, 2001 AUMF passed by Congress after the 9/11 attacks, and if not whether that matters.
Does AQAP Come Within the Scope of the AUMF?
I think it does. The AUMF does not actually name the entities against whom force is authorized, but instead specifies that the President can 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.
Both President Bush and President Obama construed this language to encompass at least al Qaeda and the Taliban, of course. That leaves lots of room for debate, though, regarding which groups count for AUMF purposes (note too that even if we have clarity at the group level under the AUMF, there is a lot of room for debate regarding which individuals are sufficiently connected to those groups to warrant the use of force in relation to them...but that’s a different topic for another time). First, there is a question about whether and under what circumstances a distinct group also falls within the scope of the AUMF. Second, even after we have settled on a list of groups that we do think fall within the scope of the AUMF, there is a separate question about how one defines the scope of each such group—a question that can get very thorny when it comes to a non-state network involving complex associational ties among individuals located in many different countries.
Where does AQAP fit into that analysis? It depends on how one understands the relationship between AQAP and original/core/central al Qaeda.
If AQAP is best understood as a truly distinct organization that simply happens to share branding with AQ, then AQAP is not within the scope of the AUMF unless it individually satisfies the AUMF’s substantive conditions (as determined by the President, to be sure)—and it might be tough to make that argument (no matter how clear and present the danger posed by AQAP may be now in 2010). If on the other hand AQAP is best understood as an integral subdivision of AQ—as much a part of al Qaeda as any other manifestation of the group—then the widely-accepted premise that the AUMF applies to al Qaeda would seem to carry with it the further conclusion that it applies to AQAP as well. The answer, in short, depends on the nature of the connections at issue, both historically and to the present day.
Working from the public record, there is only so much information available. To scratch the surface a bit, useful sources include the Carnegie Endowment’s “Yemen: On the Brink” paper, this BBC profile, and Monday’s NPR interview with Greg Johnsen. The BBC profile begins the story in 2003, when al Qaeda members in Saudi Arabia launched simultaneous attacks on several Western housing units in Riyadh, followed by a similar attack later that year. More attacks against Saudi targets followed, and then in the summer of 2004 there were two attacks on American targets in Saudi Arabia – the kidnapping and murder of Paul Johnson and a bloody attack on the U.S. consulate in Jeddah. Meanwhile in the early post-9/11 period, authorities in Yemen had jailed a large number of al Qaeda suspects, including a man believed to be the mastermind of al Qaeda’s attack on the USS Cole. Some 23 of these individuals escaped from jail in 2006, however, and some of these individuals—including one who had been close to bin Laden as an al Qaeda member in Afghanistan—eventually led the formation of “al Qaeda in Yemen” by drawing in both new volunteers and experienced individuals who had been in the fighting in Iraq or Afghanistan. Later, al Qaeda in Yemen and remnants of al Qaeda in Saudi Arabia—including two Saudis formerly held at GTMO--announced a merger, establishing AQAP in early 2009. The Carnegie paper sheds a bit more light, arguing that the
raised profile of the current incarnation of the organization should not detract from an awareness of al-Qaeda’s enduring presence in Yemen. (p. 2, emphasis added)
There is plenty of room for disagreement here; it’s not as if we have a clear metric against which to measure these basic facts en route to deciding whether AQAP is sufficiently part of al Qaeda for the distinction to really matter for AUMF purposes. That said, this account to my mind makes a reasonably strong case for construing AQAP not as some new, stand-alone entity but rather as simply one among many, long-standing manifestations of the al Qaeda network against which the AUMF is directed. Or at least a president reasonably could so determine in the exercise of the judgment called for by the AUMF.
Does It Matter, For Domestic Law Purposes, If AQAP Is Not Within the Scope of the AUMF?
All that said, a reasonable person could disagree with that analysis, especially if other, discordant facts are brought to the surface. But would this matter?
It should not matter in terms of the domestic constitutional law question relating to the institutional allocation of authority to resort to armed force. Even if we artificially depict AQAP as a newly-emerged entity responsible solely for the Christmas Day and Airmail bomb plots, AQAP’s demonstrated motive, capacity, and intent to carry out terrorist attacks against Americans provides a substantial domestic law foundation for the executive branch to act in self-defense under color of Article II even absent a new AUMF or other form of congressional authorization. The situation is rather similar to circumstances in the late 1990s, on this view, when the Clinton Administration responded with missile strikes to repeated attacks by the “original” al Qaeda without seeking any particular approval from Congress before or after. One might attempt to distinguish the two circumstances on the ground that AQAP’s two airborne plots were foiled whereas some of al Qaeda’s 1990s plots—most notably of course the 1998 East African embassy bombings—succeeded. But I think a strong argument exists for not requiring aggressors to actually succeed before the power and duty to respond with force attaches--especially in circumstances where the threat is not notional or anticipated but rather repeatedly demonstrated.