May 2015

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.