Guest Post: Gabor Rona on the AUMF Discussion

[Gabor Rona is a Visiting Professor of Law and Director, Law and Armed Conflict Project at Cardozo Law School.]

Just Security and Lawfare have published dueling AUMF reform proposals, here and here. (The proposals are not those of Just Security or Lawfare, but rather, those of the individual authors. For ease of reference, I’m calling them Just Security and Lawfare.) At the moment, there are also dueling posts on the two websites about the meaning of the Just Security proposal’s sunset provision. In fact, there are bigger fish to fry.

There’s quite a bit of agreement in the two proposals, as Ben notes in his responsive post at Lawfare, but he takes issue with the Just Security proposal’s principle #1: that a new AUMF should be “ISIL-specific and mission-specific.” Ben wants to include Al Qaeda and the Taliban, but the fact is that while the Just Security proposal is limited to ISIL, it does nothing that would conflict with executive powers to use force elsewhere. Both proposals contemplate force against ISIL and “associated forces,” but the Lawfare proposal explicitly adds Al Qaeda and the Afghan Taliban. This addition appears to be a critical distinction between the two proposals, since they both also envision repeal of the 2001 AUMF against those responsible for 9/11 and those who harbor them (Al Qaeda and the Taliban) and of the 2002 AUMF against Saddam’s Iraq. Ben fears, mistakenly, that the Just Security proposal would leave our residual forces in Afghanistan legally naked. Here’s why he’s wrong.

The U.S. mission in Afghanistan hasn’t ended, but it has changed. The two international legal elements for armed conflict no longer exist. The first element is frequent and/or severe attacks. Fact is, it’s been quite a while since there have been either frequent or severe hostilities between the US and Al Qaeda/Taliban, whether in Afghanistan, Pakistan or elsewhere on the planet. The drawdown of coalition troops and the limits imposed on those that remain make it difficult, if not impossible, for frequent or sever hostilities to persist. The second element for armed conflict is that the attacks be conducted by organized entities with a command structure, such that they are capable of being considered “a party” to armed conflict and subject to the laws of war. Whether you prefer to think of Al Qaeda as having “metastasized” or “dissipated,” there’s plenty of reason to doubt that “it” is no longer an “it” with the requisite command structure.

Another way to view the situation is that we’ve gone from war in Afghanistan, where force may be employed offensively, to non-war, where force may be employed defensively. The point for AUMF purposes is this: while US troops may need congressional authorization to prosecute a war, they do not need congressional authorization to defend themselves. That’s because the executive has inherent authority to order, or permit, our forces to defend themselves in the event of attack or imminent threat.

Bottom line # 1: while the Lawfare proposal is more emphatic about repeal of the two AUMFs than is the Just Security proposal, it is the Just Security proposal’s limitation to ISIL that more genuinely melds facts on the ground with applicable law, while doing nothing to compromise the executive’s constitutional powers to use force in self-defense.

Ben’s concerns aside, both proposals fail to deal effectively with the flawed notion of “associated forces.” Section 2b of the Lawfare proposal says that the “authorization of force (against Al Qaeda, the Islamic State, and the Afghan Taliban) extends to associated forces of (those) entities . . . insofar as such forces are engaged in hostilities against the United States.” There are two things wrong here.

First, the very notion of “associated forces” as a construct to widen the net of war is wrong. There is no such notion in international law, and for good reason. There is a notion of “co-belligerency” applicable to wars between states. This notion exists to remove the protections of the law of neutrality when State C interferes in a war between States A and B. But there is no neutrality principle applicable to non-State armed groups, so the US’s doctrine asserting the right to engage against “associated forces” by analogy to the concept of co-belligerency is flawed. In fact, the notion of war against X and its “associated forces” is little different than the notion of global war, absent refinement of the associated forces concept.

Second, the Just Security proposal also endorses the “associated forces” concept and is, therefore, also flawed, but it at least requires a narrow definition of that term, “to include only those groups that are acting in concert with ISIL as parties to the armed conflict against the United States…” The Lawfare proposal does not define “associated” and applies to any forces “engaged in hostilities,” a much broader frame than “acting in concert with ISIL as parties to the armed conflict…”. It’s questionable that ISIL or any of its alleged associated forces are “engaged in hostilities against the United States.” As far as I’ve seen, the hostilities have been pretty much a one-way street, with U.S. bombings of ISIL. To maintain this asymmetry is why, I suppose, Americans don’t want U.S. boots on the ground.

Bottom line # 2: if you want to authorize use of force against “associated forces” rather than specific named entities (although I recommend against it for the reasons stated above) do so with the Just Security proposal’s reference to “parties to the conflict” rather than Lawfare’s “engaged in hostilities.”