10 Jan Al Qaeda in the Headlines
Put the words “Al Qaeda” in a news headline, and you inevitably conjure a very particular idea in the mind of the American reader. “Al Qaeda” is the group that attacked the United States on 9/11. The group led by Osama bin Laden (now led, some might recall, by his successor, Ayman Zawahiri). The group we’ve been at war with for the past decade-plus, and that would gladly attack us again when it has the chance. It’s the group (legal-minded readers would add) whose members the President is authorized by the AUMF statute to detain indefinitely or target lethally. It’s a term, in other words, that has specific and powerful meaning in our political and legal life.
But the recent reporting on the takeover of Falluja in Iraq by an “Al-Qaeda-linked” group obscures a much more complicated reality than the one conjured by the brand name “Al Qaeda.” (Among the recent headlines: “Qaeda-Linked Militants in Iraq Secure Nearly Full Control of Falluja” in the New York Times; “U.S. Won’t Ship Iraq The Weapons It Needs to Fight Al Qaeda” (describing “Fallujah’s fall to al Qaeda”) in Foreign Policy.)
Read even a little bit past some of the headlines (ok, typically about ten paragraphs past, more often in a different story altogether) and one learns that the group that took over Fallujah is a radical Islamist group called the Islamic State of Iraq and the Levant, or the Islamic State of Iraq and Syria (ISIS). True, the same group (more or less) was once known as Al Qaeda in Iraq (AQI) (one of about a half-dozen changing names in the mix over the past decade), but the name changed again about a year ago to reflect the group’s growing aspirations and involvement in Syria as well.
Ok, but just because the group is now called ISIS rather than AQI doesn’t mean reports are wrong to call it Al-Qaeda-linked, right? Fair enough, a rose by any other name, etc. So how can one tell whether a group is actually Al Qaeda affiliated or not?
As Harold Koh reminded us at the AALS conference last week (great panel put together by the Section on National Security Law), what matters in the domestic legal sense (in the sense Congress and the Administration and courts have used it in interpreting the 2001 AUMF) is whether these groups are “co-belligerents.” While the term lacks anything like the certainty in international law that many administration lawyers seem to think it has, the Administration at least has adopted a multifactor test for what it thinks co-belligerency means: (1) an organizational affiliation such that Zawahiri’s Al Qaeda is capable of exercising a degree of command and control over the associated group; (2) evidence that the associated group has in fact “joined the fight”; (3) “the fight” that the associated group has joined is against the United States. If the group doesn’t meet those criteria, it doesn’t fit within the definition of the law.
Let’s start with organizational control. As best I can tell from published reports, one of the main sources of in-fighting amongst Islamist rebel group in Syria stems precisely from the fact that ISIS is not following orders from Zawahiri. Here’s Sarah Birke’s recent article (once again headlined, “How al-Qaeda Changed the Syrian War”) from the New York Review of Books describing the evolution:
[ISIS founder] al-Baghdadi decided it was time to merge [another radical Islamist group, Jabhat al-] Nusra, with Al Qaeda in Iraq, expanding the geographical spread of the organization, which doesn’t recognize national borders but seeks to unite the entire umma, or Muslim community of believers, under one rule. He declared the two branches would be known as the Islamic State of Iraq and al-Sham. Al-Sham refers to Greater Syria, the whole expanse of the Levant that holds a special place in jihadist thought for being the heart of the region and close to Jerusalem. But Jabhat al-Nusra’s leader Mohammed al-Jolani, who is Syrian, refused the merger, possibly because it had not been sanctioned by al-Qaeda’s chief, Ayman Zawahiri, who later ruled that the two groups should remain separate (a ruling ignored by the ambitious Baghdadi, leading some to consider ISIS outside al-Qaeda). In fact, while ISIS and Nusra share many aims, and both are well funded and trained, there are significant differences between the two groups. Jabhat al-Nusra stresses the fight against Assad, while ISIS tends to be more focused on establishing its own rule on conquered territory. Nusra has pursued a strategy of slowly building support for an Islamic state, while ISIS is far more ruthless, carrying out sectarian attacks and imposing sharia law immediately. And while Nusra, despite its large contingent of foreign fighters, is seen as a home-grown problem, Syrians at the border frequently described Da’ash as foreign “occupiers” in their country.
Indeed, while Zawahiri has been trying to assert Al Qaeda’s authority over both ISIS and its rival Islamist group Al Nusra, neither group has been a model of compliance. In a videotaped aired by Al Jazeera two months ago, Zawahiri blamed the leaders of both groups for acting without the knowledge of the central al-Qaeda leadership, and ordered the re-organization of jihadist efforts in Syria and Iraq by abolishing ISIS and giving Al Nusra sole responsibility for Syria. ISIS, however, has shown no sign of curtailing its Syrian operations. Indeed, Foreign Policy separately reports that ISIS arrested, and has probably killed, a Jabhat al-Nusra commander in the city of Raqqa. Despite all this, the Times in particular is fond of citing the “black banners of Al Qaeda” as evidence that ISIS, et al. remain tied to the same mast, as it were. But terrorist experts have regularly pointed out the popularity of the black flag with the white lettering among a range of Islamist groups across the region. As Aaron Zelin, co-author of a recent West Point Counterterrorism Center report, put it: “Just because they have a flag does not necessarily mean they are al Qaeda. Anybody could use a flag like that.”
Beyond all this, there’s no evidence I’ve been able to unearth that ISIS has in fact “joined the fight” against the United States. On the contrary, as Dan Byman recently reminded us: “AQI’s focus on Iraq’s Shi’a government and population was never in harmony with the Al Qaeda’s core’s focus on the United States and the West.” While ISIS’s radical Islamism, and of course regional sectarianism more broadly, may well have a host of troubling implications, it is far from the same kind of danger to the United States posed by a group – the Al Qaeda of 2001 the name still evokes – with both the means and the motive to attack the United States directly.
Which brings me back to the original point. Whether or not ISIS is lawfully subject to the use of force authorized by the 2001 AUMF – and I am so far unpersuaded that it is – use of the name “Al Qaeda” in headlines has political consequences in our public debate. If it’s really that Al Qaeda, political pressure to use force in Iraq (and everywhere else) will build. If it’s something else – a group with different aims, a different focus – then our strategy may well and wisely be quite different.
Journalists trying to report from the nightmare of Syria and Iraq are doing a brave and important service; more than one has died trying to do it. But the headlines are misleading. We should all read more about what’s going on in Syria and Iraq. And if we don’t know what or who, we should be able to read that, too.
I don’t think this is right. Your factual analysis is, but I don’t think that either the readers or the writers of the New York Times would understand “Al-Qaeda linked” to mean that the group in question takes orders from Zawahiri. I think readers understand all these “affiliated”-type descriptors as referring to a partnership of equals between the groups mentioned, without necessarily implying central command and control or even a strictly identical set of goals. The value of the descriptor is that it helps the reader understand where on the spectrum of religious fanaticism to place a given group. “Al-Qaeda linked” goes to the right from the Muslim Brotherhood and Hamas, for example.
[…] Cardozo Law Professor Deborah Pearlstein took on those questions in an Opinio Juris post yesterday, “Al Qaeda in the Headlines.” Deborah notes the media fondness for attaching labels like “Al-Qaeda-linked” to a range […]
[…] as Deborah Pearlstein points out in an excellent post on Opinio Juris, there is little evidence that Islamic State in Iraq and Greater Syria (ISIS), the […]
Add to the above: and it is IMPOSSIBLE under international law for the U.S. to be at war or in an armed conflict with al Qaeda as such. Al Qaeda simply does not meet the test for “insurgent” status under traditional criteria (e.g., (1) field military units under responsible command in sustained or protracted hostilities, and (2) control significant territory as its own territory), nor under Article 1 of Protocol II, much less the customary criteria regarding “belligerent” status under the laws of war in the case of a belligerency (such as those applied re: the CSA during the US Civil War) which is a step up from an insurgency. If Harold stated that an al-Qaeda affiliate is a “co-belligerent,” someone should have reminded him about the traditional criteria and Protocl I’s criteria for insurgent and belligerent status under international law.
The fact that the law of war paradigm does not apply outside the theatre of a real armed conflict in, for example, Afghanistan, does not mean that the self-defense paradigm does not apply with respect to the capture and targeting of non-state actors who are direct participants in ongoing armed attacks (DPAA).
In the interest of precision, I should highlight the text of Harold Koh’s formal speech at Oxford, delivered after he left the State Department, on the co-belligerency standard. It’s different in one key respect from my paraphrase of it in the post, but the Oxford version does not lead me to a different substantive conclusion on the applicability of the AUMF to ISIS based on what I’ve been able to discern. In May 2013, Harold said: “The U.S. Government has made clear that an ‘associated force’ must be (1) an organized, armed group that (2) has actually entered the fight alongside al Qaeda against the United States, thereby becoming (3) a co-belligerent with al Qaeda in its hostilities against America. Just because someone hates America or sympathizes with Al Qaeda does not make them our lawful enemy. Under both domestic and international law, the United States has ample legal authority to respond to new groups that would attack it without declaring war forever against anyone who is hostile to us. But make no mistake: if we are too loose in who we consider to be “part of” or “associated with” Al Qaeda going forward, then we will always have new enemies, and the Forever War will continue forever. The… Read more »
The words “force,” “armed group,” and “fight” are ambiguous enough, but the words “belligerent” and “hostilities” have a special meaning under international law, as noted partly above.
The AUMF does not require or expressly envision that the U.S. be in “hostilities,” at “war,” in an “armed conflict,” or fighting a “belligerent.” and expressly refers to “self-defense” and “terrorism.”
Terrific article. As a long time practitioner, working these issues before UBL or Qa’ida were in ANY lexicon, this piece is spot on. Linkages in media today–and even among the should-be-informed leader class–among the disparate entities with AQ in their name, or some among them who at some time had contact with core AQ, are usually false or blurry. It remains profoundly important to discern the local and regional context in understanding the threat and knowing the enemy and, thus, informing the strategy and tactics to combat it.