September 2014

Matrix Chambers Application Deadline Extended

Matrix Chambers has extended the deadline for applying to September 26 -- two weeks from today. I hope readers with the appropriate credential will consider applying. You can find the original post, with details of the Matrix vacancy, here....

On the Theory that ISIL is Al Qaeda

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?

Is it Legal? No.

Let’s start with the Administration’s newly minted theory (h/t Marty Lederman for posting the operative statement) that the statutory 2001 AUMF authorizes the President’s announced campaign to use force against ISIL in Iraq and Syria. The AUMF does not plausibly extend to ISIL. In addition to the reasons my friends Jens Ohlin, Jen Daskal and others have already...

Obama’s Lame Justification for the ISIL Strikes (He Played the Wrong Card)

I'll pile on in deploring the legal justification for the expanded operation against the Islamic State. No one is buying the AUMF basis. In addition to Jens below, Jack Goldsmith and Jennifer Daskal have devastating critiques here and here. The justification could have lasting negative consequences for interbranch relations in the war powers context. The 2001 AUMF involved a context in...

Obama Walks a Thin Line on ISIS

A few minutes ago, President Obama addressed the nation to explain his new policy to contain and destroy ISIS. He is walking a fine line: more airstrikes but no direct ground invasion. Instead, he will fund, equip, and train foreign troops to engage in the ground fighting themselves. While this is a politically popular view (ground troops are always risky),...