Thinking Through the Malian Thicket

by Deborah Pearlstein

I can’t imagine that the DOD-DOJ-DOS-DNI-CIA lawyers assigned to this one are getting much sleep these days. According to the Washington Post:

The Obama administration is considering significant military backing for France’s drive against al-Qaeda-linked militants in Mali…. The loosely affiliated web of Malian militants in the country’s north includes members of al-Qaeda in the Islamic Maghreb (AQIM). But other fighters are longtime foes of the Malian government and pose no direct threat to U.S. interests.… U.S. officials have said publicly that they are evaluating France’s requests for further assistance. But privately, they say that one of the critical requests relates to intelligence that could be used for targeting purposes, said the senior official, who spoke on the condition of anonymity about intelligence and diplomatic matters. Evaluating the request involves “understanding what the French objectives are and really how they intend to go about them and against whom,” the official said.… The official said contingency plans for the use of armed drones were already in place and are being reevaluated. The official would not be more specific.

Hard to figure out from this bare report what’s really being considered here, but it seems that France wants either (at least) U.S. intelligence support for deciding what/whom to target in its ongoing ground operations against Islamist insurgents in Mali, or (perhaps) wants the U.S. to conduct targeting operations itself. (According to the Post, the U.S. government has ruled out sending U.S. ground troops to Mali anytime soon.)

Could the U.S. lawfully engage in armed drone operations in Mali? Where to start (and still get class prepared for tomorrow)? Maybe one international law question, one domestic:

(1) International law. Attacking anything in Mali raises territorial sovereignty concerns. Is there a government there that could lawfully consent to the U.S. use of force in country such that the U.S. wouldn’t risk violating UN Charter article 2 prohibitions against the use of force? Consent, best I can tell, is the only option here. There’s no UN Security Council resolution authorizing the use of force. And I’ve yet to see any media report suggesting we think there’s any kind of direct threat (much less an imminent threat) posed by the Malian militants against the United States. So consent it is, and it would come from, best case, a government that seized power by coup and to which we’ve otherwise cut off military aid. The U.S. still maintains an embassy in Mali (as does Mali in the U.S.), so perhaps consent is not legally insurmountable. But I’d wonder both what the terms of the U.S. aid cut-off were, and whether there’s any precedent for this.

(2) Domestic law. This seems the tougher question. Would, for example, the 2001 AUMF authorize the use of military force here? Recall the AUMF authorizes the use of “necessary and appropriate force against those nations, organizations, or persons [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.” Setting aside for the moment whether there’s any operational way of distinguishing AQIM folks from the non-AQ-affiliated militants also opposing the Malian government, the AUMF would seem to apply at most to members of AQIM (not the other militants). But does the AUMF even extend to AQIM? According to the analysts at the West Point Combating Terrorism Center, AQIM was born as a guerilla Islamist movement opposing the secular government of Algiers. It became affiliated with Al Qaeda only as a last ditch effort to save its flagging local fortunes, perhaps as many as 5+ years after the attacks of September 11. This brings us back to the thorny and never resolved question of against whom, other than members of the Taliban and the Al Qaeda that attacked us on 9/11, the AUMF permits the use of force. But where it seemed possible to understand the case (based on publicly available information) that AQAP – the Al Qaeda affiliate in Yemen – actually had designs on harming the United States, it’s much less clear to me that AQIM harbors the same objective. Of course the United States should be concerned about AQIM – both the possibility of it establishing a Taliban-like Al Qaeda-friendly government in Mali, and the threat it more plainly poses to our allies France and Spain. But is that the threat Congress was worried about when it passed the AUMF? Hard to see.

(2b) So if not the AUMF, then what? The President’s own constitutional authority to use force (at least until the War Powers Act deadline)? Remind me after class tomorrow to re-read in full that OLC memorandum defending the President’s constitutional authority to use force without congressional authorization in Libya. For now I’ll just note that the sign-off there was pretty case specific. And had something to do with a UN Security Council resolution we surely don’t have this time.

The President explained in his March 21, 2011 report to Congress that the use of military force in Libya serves important U.S. interests in preventing instability in the Middle East and preserving the credibility and effectiveness of the United Nations Security Council. The President also stated that he intended the anticipated United States military operations in Libya to be limited in nature, scope, and duration. The goal of action by the United States was to “set the stage” for further action by coalition partners in implementing UNSC Resolution 1973, particularly through destruction of Libyan military assets that could either threaten coalition aircraft policing the UNSC-declared no-fly zone or engage in attacks on civilians and civilian-populated areas. In addition, no U.S. ground forces would be deployed, except possibly for any search and rescue missions, and the risk of substantial casualties for U.S. forces would be low. As we advised you prior to the commencement of military operations, we believe that, under these circumstances, the President had constitutional authority, as Commander in Chief and Chief Executive and pursuant to his foreign affairs powers, to direct such limited military operations abroad, even without prior specific congressional approval.

If armed drones are really what France is after, hope the OLC folks know where to get late-night take out coffee and croissants.

UPDATE: Complicating matters further, the Times now reports: “Islamist militants seized a foreign-operated gas field in Algeria early Wednesday and took 20 or more foreign hostages, including Americans, according to an Algerian government official and the country’s state-run news agency, in what appeared to be a retaliation for the French-led military intervention in neighboring Mali.”

http://opiniojuris.org/2013/01/16/thinking-through-the-malian-thicket/

4 Responses

  1. For direct strikes, President Clinton authorized strikes against AQ militant camps in Afghanistan after USS Cole bombing.  There is more direct connection to US here but still there was no UN resolution backing it and Afhanistan was an independent state.  One would argue it is quite similar (especially now after the hostages crisis).
    As to intelligence sharing, one would imagine that such prohibitions do not apply.  Ultimately US shares intelligence with Isreal often enough that helps Israel target palestinian militants. 
    Final point – I have not read it but France got a UN resolution passed unanimously that approves the military action.  I would imagine that unless there are any specific restrictions US help would be covered by this resolution.

  2. Thanks, Krzys. You’re right that the Security Council did adopt a resolution , UNSCR 2085, to authorize the deployment of an African led international support mission in Mali (AFISMA) to support Malian efforts to regain the territory taken by the insurgents. The resolution also calls on member states to support that support effort in certain ways – most clearly for intelligence, logistical support, etc. Even troops (which the US has ruled out). Does that resolution do enough to satisfy the domestic US law question of the President’s constitutional authority to use force? It seemed something of a reach in the Libya situation. To me it seems an arguably bigger reach here.

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  1. […] for US support that is necessary in order for France to comply with Mali’s request.   As Deborah Pearlstein points out, there is a fuzzy issue here in that the legitimate government of Mali was deposed in a military […]

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