Guest Post: Stephen W. Preston on ‘The Legal Framework for the United States’ Use of Military Force since 9/11’ (ASIL Annual Meeting 2015)–Old Wine in New Bottles

[Elisa Freiburg, LL.M. (LSE), is research associate for international law at the University of Potsdam and a doctoral candidate at the University of Heidelberg. Her research focuses on international human rights, development, international criminal law, and the use of force.]

On April 10, 2015, Stephen W. Preston, General Counsel at the United States Department of Defense, delivered a keynote speech at the ASIL Annual Meeting. This speech addressed a vast number of US policy issues and describes the current state of the US understanding of international law on the use of force – an understanding that should worry the international community.

A central issue and starting point of Preston’s speech was the 2001 Authorization for Use of Military Force (AUMF), which had been passed by the US Congress in the aftermath of 9/11 on September 14, 2001, and still, as of today almost 14 years later, continues to authorizes the US President under domestic law to use “all necessary and appropriate force against those nations, organizations, or persons” responsible for 9/11  (or those who harbored such organizations or persons), “in order to prevent any future acts of international terrorism against the United States”. In 2009, the Obama Administration filed a memorandum in the Guantánamo habeas litigation, arguing that the President’s authority to detain “persons who were part of, or substantially supported, Taliban or al Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners” could be derived from the 2001 AUMF (thereby actually abandoning the “enemy combatant” argument of the Bush administration). By the National Defense Authorization Act for Fiscal Year 2012, US Congress endorsed this new formula which meant that the initial definition of the 2001 AUMF had been significantly expanded.

Certainly, the term “or associated forces” in that definition offers endless possibility to expand the scope of alleged detention authorities. Preston reiterated the interpretation by his predecessor, Jeh Johnson, who had held in 2012 that an associated force must be both (1) an organized, armed group that has entered the fight alongside al-Qa’ida (no mere alignment), and (2) a co-belligerent with al-Qa’ida in hostilities against the US or its coalition partners. Preston also referred to a public hearing before the Senate Foreign Relations Committee in May 2014, during which he had listed the groups and individuals against which the US were taking military action (in the sense of capture or lethal operations) under the 2001 AUMF, namely: al-Qa’ida, the Taliban and certain other terrorist or insurgent groups in Afghanistan; al-Qa’ida in the Arabian Peninsula (AQAP) Yemen; individuals who are part of al-Qa’ida in Somalia and Libya; (since 2014) the Nusrah Front and the Khorasan Group in Syria; and “the group we fought in Iraq when it was known as al-Qa’ida in Iraq”, the Islamic State. This list already shows how the understanding of the original scope of the AUMF (applicable to those responsible for the 9/11 attacks) has been expanded since 2001. Though Preston tried to differentiate between the Islamic State and its ties with al-Qa’ida, and (theoretically) a totally new group arising “fully formed from the head of Zeus”, in practice one might wonder whether a new group in the region without any links to al-Qa’ida would not rather constitute an abnormality than the rule (at least for the foreseeable future), thereby allegedly allowing the US to include every terrorist group in the region into the AUMF scope if they wanted to. The inclusion of the Islamic State, which does not consider itself as forming part of al-Qa’ida, but as a new group, demonstrates that this line of association might last, from the US perspective if not forever, then for quite a while.

Apart from linking the group to al-Qa’ida’s legacy, Preston stressed that at the same time, IS “continues to denounce the United States as its enemy and to target U.S. citizens and interests”. Given that the AUMF was originally coined to the 9/11 terrorist attacks – attacks on US soil – , this reasoning indicates how far the administration has moved away from the original purposes as they were accepted by the international community back in 2001, as an act of self-defense. While in international law, doubts about the legitimacy of self-defense arise already when a State’s citizens are attacked on foreign soil, the protection of mere “interests” must be seen as an extraordinary expansion of the legality of the use of force under international law (an expansion which the International Court of Justice would probably not approve, as demonstrated by its 2005 judgment in the Armed Activities case between the DRC and Uganda).

In addition to the 2001 AUMF, Preston also refers to the 2002 AUMF relating to Iraq, which authorized the use of force to “defend the national security of the United States against the continuing threat posed by Iraq”. Preston was unwilling to restrict the scope of the 2002 AUMF to its original purpose, “the threat posed by Saddam Hussein’s regime in Iraq”, but claimed that it has “always been understood to authorize the use of force for the related purposes of helping to establish a stable, democratic Iraq and addressing terrorist threats emanating from Iraq”, and therefore still authorizes military operations against IS in Iraq and even in Syria. Nation-building as an alleged justification for the use of force – it seems that the Obama administration has still not left behind the phrases and patterns of the Bush era. Likewise, “revitalizations” of former authorizations (this time one of domestic law) for the use of force apparently are still a big issue for the US government.

It is only after such extensive analysis of domestic law, Preston then addressed the international legal framework. With regard to anti-IS operations in Syria, Preston relied on “the collective self-defense of Iraq and U.S. national self-defense” against non-State actors on the territory of State whose government “is unwilling or unable to prevent the use of its territory for such attacks”, “consistent with Article 51 of the UN Charter”. While the right of self-defense of Iraq (which invited the US forces to intervene) had already been referred to in former statements of US officials, one should wonder which implications the second half of this statement, “U.S. national self-defense” will carry. It might indicate that even if Iraq withdrew its invitation, the United States would consider itself to nevertheless be in a position to continue operations based on the violation of above-mentioned “interests”, IS being “a threat not only to Iraq and our partners in the region, but also to the United States.” It remains unclear whether the main threat to US interests would consist of general instability within the region, humanitarian interests or any potential of future terrorist attacks on US soil. These considerations may be linked back to the (apparently not completely gone) days of the ‘Bush Doctrine’ as laid out by the 2002 US National Security Strategy, which claimed the right of so called ‘pre-emptive’ self-defense, “even if uncertainty remains as to the time and place of the enemy’s attack”.

When Preston turns to the situation in Afghanistan, he first stressed (and was right to do so) that in an armed conflict between a State and a terrorist organization, an official agreement to end the conflict is highly unlikely. He referred to the US Supreme Court’s 2004 judgment in Hamdi v. Rumsfeld, in which the Court cited Article 118 of the Third Geneva Convention explaining that it was “a clearly established principle of the law of war that detention may last no longer than active hostilities”. The Court then concluded that “[t]he United States may detain, for the duration of these hostilities, individuals legitimately determined to be Taliban combatants who engaged in an armed conflict against the United States” (without due regard to the fact that the term ‘combatant’ does not apply to the non-State party in non-international armed conflict). While President Obama had declared just in December 2014 that the “combat mission in Afghanistan is ending, and the longest war in American history is coming to a responsible conclusion”, Preston indicated that the conflict might be considered as ongoing for quite a while: “Taliban members continue to actively and directly threaten U.S. and coalition forces in Afghanistan, provide direct support to al-Qa’ida, and pose a strategic threat to the Afghan National Security Forces. […] There is no doubt that we remain in a state of armed conflict against the Taliban, al-Qa’ida and associated forces as a matter of international law.”

Though Preston mentioned the Hamdi v. Rumsfeld case in order to explain when such a conflict could be ended (namely when active hostilities have stopped), and though the judgment at that time had referred only to “Taliban combatants”, he sent an alarming signal to the detainees at Guantánamo Bay: according to the logic of his arguments, detentions could be considered as justified by the government as long as either al-Qa’ida or associated forces continue to engage in hostilities. In 2009, President Obama had promised the first time to close the camp at Guantánamo Bay, but US Congress had then blocked the implementation of the respective order. In early 2011, former Secretary of Defense Robert Gates said that the camp at Guantanamo Bay was unlikely to be closed, due to opposition in Congress. Until today, the concrete future of the detainees remains uncertain and the biggest part of them did not face trial, rendering the camp a legal black hole, somewhere in the dark void between a POW camp and a proper prison for persons suspected of having committed acts of terrorism. However, Preston did not express a general commitment to the camp’s closure, nor did he address the detainees’ status under international law. Instead, he rather introduced an argument that might prolong and extend the existence of the detention camp. If indeed, the scope of the 2001 AUMF now is supposed to also cover the fight against IS, it is also yet another part of the AUMF interpretation – namely the power to detain individuals who have engaged in hostilities against the US – could likewise be extended, not only ratione temporis but also ratione personae as also covering “associated forces”, resulting in a never-ending Guantánamo story.

Close to the end of his speech, Preston described his experiences in 2009, when he returned to Government and had to read and hear in the media on a daily basis that US counter-terrorism operations were illegal, as “deeply disturbing, and something had to be done about it”. However, the meaning of “something had to be done” apparently did not refer to the character of the operations themselves, but merely to how they were transported to the media and how most people received them. Nowadays, he finds that “the lawfulness of our government’s efforts to counter foreign terrorist threats is now better understood, and more widely accepted, at home and abroad”. The use of the phrase “deeply disturbing”, in light of the very recent revelations of US torture methods and the damage done, physically and psychologically, to the men suffering of torture by the hands of US officials in the name of counter-terrorism, should be the issue really disturbing.

Overall, the focus of Preston’s ASIL speech on domestic justifications instead of international law, the repetitive emphasis on US “interests” (in Afghanistan, Iraq, and the region in general), as well as the indication that detentions are considered legal and legitimate as long as active hostilities continue (including also “associated forces”), raise not only the question whether the position of the US government about its standing in the international legal order has really significantly changed for the better, but also whether this government is still willing to face discussion about its perception.

In 2008, not only the American people, but also international lawyers everywhere in the world hoped for change – and for a stronger commitment to the rules and principles of international law. The last six years have shown – and Preston’s ASIL speech confirmed this feeling – that too often, the Obama administration sells old wine in new bottles.