AUMF: Scope and Reach

Thoughts About the Obama Administration’s Counterterrorism Paradigm in Light of the Al-Liby and Ikrima Operations

By Jack Goldsmith
Sunday, October 13, 2013, 11:17 AM

Mary DeRosa and Marty Lederman, both of whom were senior national security lawyers in the Obama administration, have a helpful if somewhat hopeful post at Just Security on the significance of the recent al-Liby and Ikrima capture operations.  The post is long, but I would summarize it as follows (this is my summary, not theirs):

These two operations exemplify the approach to counterterrorism that the President emphasized in his May 23 NDU speech, which has these elements: (1) The use of drones outside the Afghan theater – which will be their predominant use once we exit Afghanistan – will be more constrained because force protection concerns will be diminished; (2) Strong preference for capture over kill operations when feasible; (3) Extraordinary efforts to avoid civilian casualties; (4) Strong preference for Article III trials; (4) Continuing focus on al Qaeda and associated forces; (5) Continuing reliance on the AUMF; (6) Focus on interdicting future threats to U.S. persons; (7) Compliance with international law (including sovereignty norms); (8) Preference for military operations over (I assume) CIA operations.

Some comments and questions:

  • Mary and Marty don’t say that there is anything new in this program, but they imply that there is, or at least suggest that this might be the counterterrorism paradigm going forward.  But I don’t think there is much new here, at least at the level of rhetoric.  The President and his advisors have been expressing all or almost all of these goals, in one way or another, since 2009.
  • Maybe (6), if true in practice, represents a half-step back from previous practice.  But if so, it raises a puzzle.  The President did indeed emphasize in May that he would not use lethal force against a target unless it poses “a continuing, imminent threat to U.S. persons,” implying that broader terrorism threats to U.S. interests or allied interests would not warrant the use of lethal force.  But only a few months later the President was threatening to intervene in Syria, where there was – as he openly admitted – no imminent threat to U.S. persons.  (And the same was true with the Libya intervention.)  Which raises the puzzle: why does the administration define U.S. interests that warrant intervention and targeting narrowly in the counterterrorism context but broadly in the humanitarian context?
  • A similar puzzle arises with respect to the AUMF.  Why is the administration, as Mary and Marty re-emphasize, so interested in staying within the AUMF framework (even while stretching that framework) and not using Article II as a basis for counterterrorism operations, while at the same time committing itself to aggressive and in some ways unprecedented Article II interventions in Libya and Syria?  Why is it OK to invoke Article II aggressively in the humanitarian intervention context but not at all the counterterrorism context?
  • It is also possible that (8) represents a new step, or emphasis.  After all these were DOD and probably Title 10 operations, and the administration could have conducted drone strikes, but instead attempted capture operations.  I have no doubt that the administration is trying, as it has been saying for a while, to shift responsibility for counterterrorism operations to DOD, and to make them non-covert to the extent possible.  Perhaps this is a beginning of a trend of accepting greater risk to troops and potentially greater risk to civilians inherent in on-the-ground capture operations in exchange for the benefits that come with DOD operations followed by criminal process.  We will see.  But the resistance to and ultimate failure of the mission in Somalia – and indeed the inability to incapacitate Ikrima in Somalia without injuries or death to civilians or troops – might be a cautionary tale
  • One might cite the Warsame episode as evidence that the administration has for a while been interested in the paradigm sketched by Mary and Marty.  The only difference between that case and al-Liby is that the former was captured at sea and the latter on land.  The back end of this counterterrorism model – prosecuting the captured terrorist in the United States for material support, or a related crime – is the easiest part.  The ultimate success of the model, it seems, turns on two issues: (i) Will the administration be able in fact to capture and extract terrorists in foreign countries, consistent with its commitment to troop and civilian protection, and international law?; and (ii) Will the administration be able to extract adequate intelligence – from shipboard interrogations, followed by a criminal process that promises a plea deal for cooperation – so as the make long-term detention unnecessary?  I am agnostic about (ii).  But I am very skeptical about (i).  For it is hard to see how U.S. capture operations, if done on a regular basis, do not result in U.S. troop or civilian casualties, followed by serious domestic or international controversy.
  • In sum, As Mary and Marty suggest, the al-Liby operation is a textbook example of how the Obama administration would like counterterrorism operations to work in the future: Non-covert DOD lead in capturing a high-value target, followed by shipboard interrogation and Article III trial.  But I think the al-Liby episodes will continue to be the exception, not the rule.  The USG will likely continue to prefer (a) working to assist foreign governments to deal with the terrorist threats within their borders themselves, and (b) using drones on occasion (but at a reduced rate overall) when necessary.  Capture operations in foreign countries will only be attempted when the foreign government consents (or its non-consent will not be a large political problem), and the target is high-value, and the threat of troop and civilian casualties is quite low.  They will be attempted, in other words, very rarely, and thus the Article III criminal process for foreign terrorists will be used very rarely.  A related implication is this:  Drone operations might well continue to decrease because of the Afghanistan exit and a new assessment of the strategic costs of drones, but we should not expect capture operations followed by Article III trials to grow in response to still-extant foreign counterrorism threats.  The big question, of course, is whether the reduced use of drones, without a robust incapacitation mechanism to replace it, will be adequate to meet the threat.