The 9/11 AUMF does not cover ISIS

by Jens David Ohlin

Last night I blogged about Obama’s speech that outlined the administration’s plan to contain and destroy ISIS. I noted that Obama announced his intention to ask for congressional authorization for the plan while steadfastly maintaining that he did not need this authorization. He was vague about why. In my blog last night, I presumed that he was asserting that he had authority under his Article II commander-in-chief power.

Marty Lederman notes in the comments, as well as on Just Security, that this was not a reference to an Article II argument. A senior administration official released a statement last night confirming that Obama is relying on the 9/11 AUMF as an enduring authorization that covers the new military initiative against ISIS.

I find this argument implausible. Here is the relevant text of the AUMF:

IN GENERAL- That the President is authorized to 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.

Since, al-Qaeda launched the 9/11 attacks, the AUMF covers al-Qaeda. It also covers organizations that planned, authorized, committed or aided the attacks, or organizations that harbored those organizations. Consequently, non-al-Qaeda organizations are covered by the AUMF insofar as they are connected to al-Qaeda in the right way.

This is a question of law application to fact, so it is necessarily a fact-dependent analysis. However, there appears to be little evidence that this link exists between ISIS and al-Qaeda. Of course, ISIS was once part of (or closely associated with al-Qaeda), and therefore at that time the AUMF arguably covered ISIS. Before its current manifestation, ISIS was considered an Iraq franchise of al-Qaeda, operating under the banner of Osama bin Laden and ostensibly subordinating itself under his operational control.

That relationship no longer exists. ISIS no longer operates under the banner of al-Qaeda, nor is it operationally subordinate to what is left of al-Qaeda core or any of the other al-Qaeda franchises. And famously, al-Qaeda effectively excommunicated ISIS for not following its central directives regarding target selection. Al-Qaeda officials correctly concluded that ISIS’s strategy was counter-productive because it alienated Muslims, and they promptly disassociated themselves from a group that was too radical even by al-Qaeda’s standards. So the operational link is broken, and has long-since been broken.

So what is the connection that the administration is asserting? They argue that

Based on ISIL’s longstanding relationship with al-Qa’ida (AQ) and Usama bin Laden; its long history of conducting, and continued desire to conduct, attacks against U.S. persons and interests, the extensive history of U.S. combat operations against ISIL dating back to the time the group first affiliated with AQ in 2004; and ISIL’s position – supported by some individual members and factions of AQ-aligned groups – that it is the true inheritor of Usama bin Laden’s legacy…

This is a weak argument. Yes, ISIS once had a relationship with al-Qaeda and Osama Bin Laden, but that prior relationship no longer governs. What matters is the current relationship. Furthermore, the fact that ISIS is the “true inheritor” of Bin Laden’s legacy is neither here nor there. In what sense is ISIS the “inheritor” of Bin Laden’s legacy? The only one I can think of is that ISIS represents the gravest Jihadist threat to the peaceful world — a position once held by Osama Bin Laden. Also, the fact that they threaten U.S. personnel and interests is an argument that proves way too much — plenty of other groups do that as well, which isn’t terribly relevant. None of this makes ISIS fit into one of the AUMF categories (planning, aiding, haboring, etc). Simply put, ISIS is not al-Qaeda.

Don’t get me wrong. I think ISIS represents the biggest threat to regional and national security since 9/11, and military force is warranted for that reason. Congress should immediately pass a new AUMF authorizing force against ISIS. I just don’t think that the original AUMF can be stretched to cover ISIS today. It’s a weak argument that sounds like a pretext to avoid making an Article II constitutional argument (which Obama presumably disfavors).

http://opiniojuris.org/2014/09/11/911-aumf-cover-isis/

2 Responses

  1. Jens David: good point about giving weapons to groups at U.S. taxpayers’ expense — and we used to support bin Laden!
    Yet, the President does have constitutional authority to engage in collective self-defense with the consent of the Iraqi government, both in Iraq and in Syria against ISIS re: continual armed attacks by ISIS against the Iraqi government. http://ssrn.com/abstract=2061835
    His international legal advisers apparently simply do not know it!
    And this constitutional authority re: “self-defense” was expressly recognized in the preamble to the AUMF (even though, yes, the AUMF as such would not apply). And there is no War Powers problem regarding the U.S. Const. Art. II, Sec. 3 authority of the President that is tied to faithful execution of international law as part of the Laws of the United States. Ibid.

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