On the Theory that ISIL is Al Qaeda

by Deborah Pearlstein

At the prompting of Marty Lederman and Steve Vladeck, let me take a moment to consider another possible reading of the Administration’s novel view that the 2001 AUMF authorizes its incipient campaign in Iraq and Syria. Recall that the AUMF authorizes the use of “all necessary and appropriate force against those nations, organizations, or persons” responsible for 9/11 and those who “harbored such organizations or persons.” The Administration and the lower courts have thus interpreted the AUMF to authorize the use of force against Al Qaeda, the Taliban, and “associated forces.” My earlier post examined the notion that ISIL was an “associated force” of Al Qaeda. Marty and Steve suggest that the Administration isn’t arguing that ISIL is an “associated force” of Al Qaeda, but rather, that ISIL is Al Qaeda. As Marty explains it:

In 2004, ISIL (then known as al Qaeda in Iraq) was part of al Qaeda proper–subject to its direction and control–in which capacity it attacked U.S. persons and was subject to U.S. combat operations. (Indeed, it was engaged in an armed conflict with the United States.) As such, ISIL was then covered by the 2001 AUMF as a component of al Qaeda. More recently, ISIL and al Qaeda “Central”–its “senior leadership”– have split apart. But ISIL has continued to attack U.S. persons, even after the split; and each of these two groups claims the mantle of al Qaeda–indeed, ISIL’s position (“supported by some individual members and factions of AQ-aligned groups”) is that it, not AQ Central, “is the true inheritor of Usama bin Laden’s legacy.” Accordingly, there are now, in effect, two al Qaedas, each of which was a component of the earlier, consolidated organization, and each of which continues its attacks on the U.S.

In other words, picture an upside-down letter “V” or “Λ.” At the single, sharp point of the Λ is the organization called Al Qaeda, which is responsible for the attacks of 9/11, and which at one point included all of what we now call core al Qaeda (led by Osama bin Laden, now Ayman al-Zawahiri), as well as what was once called al Qaeda in Iraq (AQI) (led by Abu Musab al Zarqawi). Over time, the unity at the top of the Λ has given way to a disunity at the bottom – with both core Al Qaeda (Zawahiri’s group) and AQI (now called ISIL, led by Abu Bakr al-Baghdadi) seeking to, as Marty puts it, “claim the mantle of al Qaeda.”

While identifying a variety of problems with the notion as a matter of statutory interpretation that the AUMF authorizes the use of force against both groups at the bottom of the Λ, both Marty and Steve argue that in key respects the validity of the theory depends on facts that are still not entirely known to the public. Is it accurate as a matter of fact to suggest that both core Al Qaeda and ISIL are both claiming or should be seen to have equal claims to “the mantle of al Qaeda”? One can imagine several ways of trying to take this theory seriously. One would begin by defining what the “Al Qaeda” at the top of the Λ (the group that attacked us on 9/11) was in the first place. One might define a terrorist group in a variety of terms, and I’m certainly open to definitional criteria. For present purposes, let’s take a handful: the organization’s name, its mission, its capacities and personnel, or any combination thereof. Then one would have to hold up each putative successor organization and see if there were any/sufficient commonality to call both AQ core and ISIL part of the same organization that attacked us on 9/11. Could ISIL in any sense assert a claim to carrying the mantle of Al Qaeda? What do we know?

Let’s start with the cosmetic: ISIL picked a different name, several times removed. (What was once AQI became ISIS or ISIL, which became the “Islamic State.” Though it’s tempting to discount the name factor as I have, that is, as mere cosmetics, the group ISIL has shown itself repeatedly and in various ways to be acutely aware of/interested in exploiting what one might call the cosmetic nature of terrorism (through a visible, vigorous web presence, the use of attention grabbing video, and so forth). If ISIL thought itself the same organization as, or the true successor of, Osama bin Laden’s Al Qaeda, why wouldn’t it have insisted on sticking with that name, or a not too distant variant thereof? Why wouldn’t have wanted to visibly embrace the brand? In the first instance, it was because AQI under Zarqawi’s control had become radically unpopular in Iraq circa 2006, and the group needed a local rebrand (changing its name to the Islamic State in Iraq). But what the name was changed to then, a close version of the group’s name today, also reflected a second important difference between it and core Al Qaeda.

Mission. In 1996, Osama bin Laden famously and publicly declared war against the United States – motivated centrally by the presence of American infidels in multiple Muslim lands (Saudi Arabia first among them). By the time his organization had partnered with Zawahiri’s (the latter’s interest originally focused on toppling the Egyptian government alone) in 1998, the group’s goals were even more focused, and included the issuance of a fatwa “to kill the Americans and their allies – civilian and military” as “an individual duty for every Muslim who can do it in any country in which it is possible to do it.” Al Qaeda’s first major confirmed terrorist attack: against the U.S. embassies in Kenya and Tanzania. ISIL, in stark contrast, grew up (in the 2000s as AQI) and remains an organization which, by its own and other public accounts, is first and foremost focused on creating and maintaining an Islamic state in that region. Its primary interest is in territorial and political power. AQI’s attacks on Americans were limited to U.S. troops and other Americans in Iraq. ISIL’s first (and apparently only) direct attacks on any Americans since: the gruesome beheadings of American journalists in Iraq, arguably for money, but expressly in retaliation for the recent U.S. airstrikes in Iraq that have repelled some of ISIL’s territorial gains there. The President said last night we are unaware of any current threats against the United States posed by ISIL. The director of our National Counterterrorism Center has said: “ISIL is not Al Qaeda pre-9/11.” There is no memo from the intelligence community that ISIL is determined to strike inside the United States. In short, Al Qaeda took (and takes) the United States as its primary enemy. ISIL does not. Does this mean the group poses no threat to America or Americans? No. But it does mean it does not obviously (or perhaps at all) share the organizational mission of the Al Qaeda that attacked us on 9/11 – the Al Qaeda against which the AUMF authorizes the use of force.

So what else might Matt Olsen (NCTC director) have meant by “ISIL is not Al Qaeda pre-9/11”? Surely not just that it lacks the same leadership personnel. (Is anyone aware of any overlap? That some individuals who fought for Al Qaeda core at one time now fight for ISIL no more makes ISIL the same organization as Al Qaeda as it does make Israel the same country as the United States because there’s a large American expatriate community living there, some of whom obtain Israeli citizenship, some of whom fight for Israel.) Olsen also meant capabilities. As the Times reported this morning: “ISIS has no ability to attack inside the United States, American and allied security officials say.” Could we be wrong about this? Surely. It would hardly be the first time the intelligence community missed something critical. But if there were any indication at all that ISIL had this capacity, one imagines the President would have had every incentive to include such concerns in his address last night. More to the present point, it also means that whatever characteristic capabilities ISIL has, they are not the same as the characteristic capabilities that are or were enjoyed by the organization Al Qaeda. In the Administration’s own view, ISIL has no access to or claim to the capabilities characteristic of Al Qaeda. Again the Times: “Despite the attention ISIS has received, when American counterterrorism officials review the threats to the United States each day, the terror group is not a top concern. Al Qaeda and its affiliates remain the most immediate focus.”

Perhaps, then, we are left with a notion that ISIL would like to think of itself as the true successor of Al Qaeda – at least in some broad, non-mission specific kind of sense, a sense not fatally undermined by its public condemnation of current Al Qaeda (led by bin Laden’s actual appointed successor), its disinclination to follow all Al Qaeda orders even as AQI, or its own effectiveness in killing other Muslims (both as AQI and as ISIL).

But if this is the claim, it can’t possibly hold. I once threw a football around in a real football stadium. I would like to think of myself as Peyton Manning. Thing is, it just isn’t so.

http://opiniojuris.org/2014/09/11/theory-isil-al-qaeda/

3 Responses

  1. I’m in basic agreement with this. But I’d like to see it explored a bit further.

    The statutory language at issue is “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”.

    Stripped to the bone, that becomes: “the President is authorized to use … force against … organizations.. [that] committed… the terrorist attacks that occurred on September 11, 2001”.

    The most basic argument is that ISIL, by whatever name, did not exist until well after those attacks, so it cannot be covered. ISIL and AQ are hostile to each other, so they cannot be the same organization. This makes sense at a basic level, and I find it fairly persuasive, and yet…

    It is unclear from the language of the statute that control over the identity of the relevant group (AQ) should be under the control of the leadership of the group or subgroup, not the President. Is it the case that the leadership of AQ and al-Shabaab could tomorrow renounce a connection with each other, and that could change whether al-Shabaab is covered by the AUMF? Or could the President decide that, even if the AQ leadership lacked control over al-Shabaab and al-Shabaab no longer had loyalty to AQ, this internal change did not change authority under the AUMF? What was the intent of congress?

    It’s certainly the case that the AUMF is broad, and perhaps unwisely so. I think the definition of “organization” as it was intended may be a contested one. I don’t think it was intended to cover everyone who pledged allegiance to the AQ leadership, and then unpledged, but I’d be willing to listen to alternative views. As a thought experiment, what if we were discussing a multinational enterprise rather than a collection of terrorist groups/subgroups? If a parent corporation was subject to sanctions, and it opened up a wholly-owned but separately incorporated local corporation that was also deemed subject to sanctions, and then it sold ownership of that local corporation, would the local corporation be subject to sanctions? Perhaps that’s not helpful, as sanctions are not equivalent to the use of force, but I would appreciate a bit more discussion of the subject.

  2. Jens: yes, it is phrased with past tense words. Interestingly also, “as he determines.”

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  1. […] rather than a continued design (or mission), is enough.  [UPDATE:  See, for example, this post from Deborah Pearlstein, in which she argues that ISIL's mission, unlike AQ's, does not include […]