Author Archive for
Deborah Pearlstein

A Summer of Shifting Alliances?

by Deborah Pearlstein

Just keeping up with the news on international terrorism/counterterrorism this summer could be a full time job. Among many other potentially significant reports, I wanted to highlight this statement recently released by Al Qaeda in the Arabian Peninsula (AQAP), often described by U.S. officials as the branch of Al Qaeda that currently poses the greatest threat to the United States. The AQAP statement announces the group’s support for the Islamic State (formerly known as ISIS or ISIL).

“We announce solidarity with our Muslim brothers in Iraq against the crusade. Their blood and injuries are ours and we will surely support them…. We assert to the Islamic Nation [all Muslims worldwide] that we stand by the side of our Muslim brothers in Iraq against the American and Iranian conspiracy and their agents of the apostate Gulf rulers.”

The statement goes on to offer various bits of non-rocket-science tactical advice to the Islamic State – watch out for spies, don’t assume electronic communications are unmonitored, digging trenches can help protect against the impact of shelling (thanks General Pershing). While I can’t generally vouch for the journalistic practices of the Yemen Times (on which I’m relying for the AQAP statement), this seems a simple direct quotation.

Why does this matter? A few reasons potentially. First, core Al Qaeda (led by Al Zawahiri) has condemned ISIL/the Islamic State and dissociated itself with the group. It is unclear how core Al Qaeda will take this move by one of its branches to voice its support for ISIL, but if AQAP intends to signal a real move away from core Al Qaeda, it would be another significant weakening of Al Qaeda’s regional and international capabilities (and a significant boost to ISIL). Second, AQAP has long been understood by the United States as a force “associated with” Al Qaeda for purposes of coverage by the statutory AUMF (authorizing the President to use force – targeting, detention, etc. – against those groups that attacked us on 9/11). If AQAP is moving to break its association with core Al Qaeda, the statutory argument that AQAP remains one of groups Congress meant to authorize force against in 2001 becomes much weaker. Given that the United States has reportedly continued to conduct targeting operations against AQAP forces in Yemen, this poses a potentially significant legal wrinkle in administration arguments that it enjoys statutory authorization for those operations. On the other hand, it would strengthen any case the administration might make to Congress for new authority to use force against ISIL and its associates. Will the administration seek such new congressional authority, particularly when the War Powers Act 60-90 day clock runs on current U.S. operations in Iraq (after which the President is required to seek congressional authorization)? Stay tuned.

OLC Memo Redux – The Bigger Picture

by Deborah Pearlstein

So did we learn anything new from the redacted OLC memorandum we didn’t already know from the earlier White Paper, Administration fact sheet, official speeches, testimony, and media leaks about the nature of the Administration’s legal theory supporting lethal targeting? Yes, several things, with important implications for operations going forward. The newly released memo has some key deficits (see, e.g., my criticism of its constitutional analysis), and as Kevin’s post notes, will not satisfy those (i.e. everyone except the United States) who reject the legal concept of a non-international/transnational armed conflict between the United States and Al Qaeda. But the analysis is detailed enough in this iteration to accomplish something the White Paper, etc. in important ways did not: identifying key legal limits on the scope of U.S. targeting authority.

Take the source-of-authority example. The earlier White Paper was remarkably successful in fudging whether the Administration was invoking the President’s Article II self-defense power under the Constitution, or the statutory AUMF, to support targeting operations. The White Paper likewise (notoriously) fudged whether it was invoking a UN Charter-based self-defense justification under international law (in which case concerns of imminence would be centrally relevant), or whether the United States believed itself in an armed conflict with AQAP such that the law of armed conflict applied (including limitations on who may be targetable). This memo is clear: the AUMF is the domestic source of legal authority, at least for the U.S. military, and the international law of armed conflict (LOAC) applies to constrain U.S. operations against AQAP. (While there is much redacted in the memo’s analysis of the nature of the CIA’s authority, it is certainly the case that the applicability of the “public authority” exception to the coverage of domestic murder statutes turns on a question of domestic, rather than international law. Here, even if the AUMF was not meant to authorize the CIA to do anything, the CIA has broad authority under Title 50 of the U.S. Code to engage in operations overseas, provided it has relevant Presidential approval and complies with requirements of congressional notification. In other words, I can imagine a straightforward explanation for why such an exception would apply to the CIA as well. That it is not evident from the memo is, I suspect, far more a function of redaction than absence of legal authority.)

The significance of the memo’s relative clarity (relative to the White Paper) is not that it forecloses the possibility that the Administration might carry out other targeting operations that are based solely on the President’s Article II self-defense power, drawing on its broad understanding of ‘imminence’ under international self-defense law; the memo is repeatedly at pains to limit its analysis to the particular circumstances of Awlaki’s case and foreclose nothing about the import of the law in other circumstances that might arise. Rather, the recognition that these bodies of law in such circumstances apply – and the analysis that accompanies that recognition – carries with it several implications for future operations.

For instance, as the memo acknowledges (citing relevant international law precedent), not every kind of violent clash rises to the level of a non-international armed conflict. The non-state party to the conflict must possess a sufficient level of organization (including an identifiable command structure) to count as a meaningful “party” to a conflict. AQAP, the memo concludes, is such a party. But for the same reason, the necessary implication of the memo’s reasoning is that a scattered set of vaguely sympathetic, violent bands of terrorists may well not rise to the level of a party to an armed conflict. More, the memo recognizes, there must be a certain level of ongoing violence between the parties – such that it is possible to distinguish between a circumstance in which the dramatic law of armed conflict is triggered, and a circumstance of sporadic violence by a criminal or terrorist group against a state in which ordinary criminal and human rights laws apply. In the memo, the existence of ongoing violence between the United States and Al Qaeda in Afghanistan (circa 2010 when the memo was drafted) seems central to its conclusion that the level of sustained violence between the groups remained high enough to meet the armed conflict threshold. By the same token, assuming U.S. combat troops withdraw from Afghanistan in the near term, that associated violence between the warring groups correspondingly drops there, and that Al Qaeda and the Taliban remain as relatively unsuccessful as they have been in recent years in carrying out attacks against the United States outside Afghanistan – this shift in the facts on the ground will have an important impact on the Administration’s continued ability to assert the applicability of LOAC. Put differently, when we leave Afghanistan, if violence drops as anticipated, LOAC-based domestic laws authorizing the use of force will run out.

Here’s another example. The memo – unlike the White Paper – directly engages the question who is targetable in LOAC. The White Paper made no mention of any LOAC targeting rules that limit Administration target selection, such as the rule that says civilians are not targetable “unless and for such time as they take a direct part in hostilities” (DPH) (AP II, art. 13). It likewise made no mention of the ICRC’s more recent guidance that in non-international armed conflicts, individuals who play a “continuous combat function” (CCF) are also targetable. Here, the memo appears squarely to embrace the CCF concept, quoting it directly: “’individuals whose continuous function involves the preparation, execution, or command of acts or operations amounting to direct participation in hostilities are assuming a continuous combat function,’ in which case they can be deemed to be members of a non-state armed group subject to continuous targeting.” CCF undoubtedly permits a broader range of targets in non-international armed conflict than had been permitted under the more limited DPH standard. But it is a standard – as opposed to no standard – nonetheless. One can serve a CCF if one is typically involved in the “preparation, execution, or command of acts or operations amounting to direct participation in hostilities,” but not if one’s function, however “continuous,” is, for example, the financing of (or in other respects materially supporting) terrorist operations, which the ICRC does not count as “direct participation.”

Will/does the Administration always comply with these rules? What does the Administration think the scope of its targeting authority outside Awlaki’s case? These are among the still many questions unsurprisingly unanswered by the memo itself. But the identification of any legal standards is better than the preceding years of relative silence. We now have a better sense of the law as the Administration itself conceives it. If the Administration now fails to abide by the necessary implications of the applicability of these rules, we will be able to say, as definitively as the facts permit, its actions violate the law.

OLC Memo – The Due Process Piece

by Deborah Pearlstein

Much to say on the redacted version of the U.S. Justice Department Office of Legal Counsel memorandum on targeted killing, released by a U.S. court yesterday. For now, let me start with U.S. constitutional law – namely, what does the Fifth Amendment require by way of procedural protection before a U.S. citizen like Awlaki may be lethally targeted?

Recall the earlier released DOJ White Paper on the topic had been clear its analysis was limited to the particular circumstances the intelligence community represented Awlaki presented: the use of “lethal force in a foreign country outside the area of active hostilities against a U.S. citizen who is a senior operational leader of al-Qa’ida or an associated force if al-Qa’ida – that is, an al-Qa’ida leader actively engaged in planning operations to kill Americans.” The memo’s effort to assess the due process requirements in this circumstance runs from page 38 to page 41. It begins by appropriately acknowledging that, because of Awlaki’s citizenship, the Fifth Amendment “likely” protects him even while he is abroad in such circumstances. The memo also correctly identifies Mathews v. Eldridge (a 1976 Supreme Court case assessing what process was due before the government could deprive an individual of property) as setting the test for assessing how much process is required in the targeting case as well; Mathews is the test the Hamdi Court applied in 2004 in determining that U.S. citizen Yaser Hamdi, picked up on the Afghan battlefield, was entitled to notice of the reason for his detention and an opportunity to be heard by a neutral arbiter, once the exigency surrounding his battlefield seizure had past.

Here, the memo’s analysis becomes more problematic. (more…)

Bombing Iraq Doesn’t Just Pose Serious Questions of Domestic Law, International Law May Be a Problem, Too

by Deborah Pearlstein

My blogospheric colleagues have begun debating whether the Administration has sufficient domestic legal authority to proceed with what the Times has called a “targeted, highly selective campaign of airstrikes against Sunni militants in Iraq” – reportedly now under contemplation. Jack Goldsmith, for example, thinks it might, under the 2002 statute authorizing the President to use military force against the government of Iraq for the purpose of ridding it of its “weapons of mass destruction.” My friends at Just Security and elsewhere have usefully debunked this notion, and related others (like the idea I’ve argued against here, that ISIS can be considered any kind of “associate” of Al Qaeda).

But while I’d contest the idea that the discussion so far is “premature” – it is no doubt precisely a topic with which Administration lawyers are currently struggling – the doubtful legality of such a set of strikes under domestic law is made even worse by the likely illegality of such strikes under international law. That is, even if the United States could come up with a domestic statutory basis for some military action in Iraq – extant Title 50 covert action authorities are quite broad, for example – it would still struggle for the approval of our allies on international legal grounds. Here’s my thinking. (more…)

An End-of-War Policy Diversion

by Deborah Pearlstein

Since I’ve given the New York Times grief in the past about using the name “Al Qaeda” to refer to non-Al Qaeda radical Islamist groups, I wanted to give them due credit for yesterday’s piece describing the takeover of Mosul by the Islamic State of Iraq and Syria (ISIS) as having been accomplished by Sunni militants. The Times piece even includes a helpful pull-out explainer box describing the origin and evolution of ISIS and its now broken relationship with Al Qaeda central.

Would that everyone had made such strides. The Washington Post’s piece on the same set of events appropriately headlines its article, attributing the attacks to generic “insurgents,” but in paragraph two of the text describes the group as “an al-Qaeda offshoot.” More paragraphs down it explains: “ISIS is an expanded and rebranded version of the al-Qaeda in Iraq organization that the U.S. military claimed it had tamed, though not defeated, ahead of the withdrawal of U.S. forces from Iraq in 2011.” It’s not until the very final graf of the lengthy piece one gets this: “Earlier this year, the leader of ISIS, known as Abu Bakr al-Baghdadi, publicly fell out with al-Qaeda leader Ayman al-Zawahiri, who was harshly critical of some of the group’s extreme methods. Though no longer directly affiliated with al-Qaeda, however, the group shares essentially the same goal of establishing a global Islamic state.”
The Post piece is misleading. As I’ve described, Zawahiri’s Al Qaeda (i.e. bin Laden’s Al Qaeda) didn’t just “fall out” with ISIS, it publicly and officially broke off all ties and condemned the group after ISIS refused repeatedly to comply with Zawahiri’s orders. If one is going to describe the group as an Al Qaeda offshoot in para two, this critical fact belongs in the same paragraph, not buried at the end.

This might seem more like nit-picking the Post if it were not for what seems to be its emblematic character – emblematic of a broader kind of category error in policy thinking about the post-bin Laden world. So forgive the diversion from legal analysis for a moment and take David Rothkopf’s piece today in Foreign Policy, anachronistically (and ominously) titled, “We Are Losing the War on Terror.” Set aside the fact that neither the President nor the courts has used the catch-phrase “war on terror” since circa 2008 (indeed, both have rejected it on the grounds that it is legally useless and politically obscures the actual and identifiable groups with which we have been at war). One might also set aside the misleading suggestion early in the Rothkopf piece that the growth in terrorist attacks worldwide is directed at (or indeed, has much to do with) Americans; I explained in an earlier post how that is not the case, and Rothkopf grudgingly acknowledges as much toward the end.

The larger problem of Rothkopf’s piece is that he ties the current proliferation of radical Islamist groups in the Middle East with “the war [Bowe Bergdahl] went to Afghanistan to fight.” A world of geopolitical water has gone under the bridge since the U.S. invaded Afghanistan in 2001. And we will be doing ourselves a huge geopolitical and strategic disservice if we pretend we now face the same – or any – kind of war.

We went into Afghanistan in 2001 because Osama bin Laden’s Al Qaeda had launched a series of terrorist attacks against the United States, culminating in the unprecedented carnage of September 11; we went in to destroy bin Laden’s ability to do such damage to our country again and to root out the Taliban government that had provided bin Laden’s group a safe base from which to operate. In 2001, bin Laden’s Al Qaeda had no claims to (or plausible hope of claims to) governing a state or territory of a state; the Middle East was governed by a set of seemingly intractably stable state dictatorships. Since the Arab Spring, the situation in that part of the world is radically different, and many groups now have claims to (and some even hope of) taking over the task of governance. In 2001, bin Laden’s Al Qaeda had named the United States as the enemy, had directed its terrorist operations toward us, and had killed our citizens. How many of the 49 Salafi-jihadist groups whose existence Rothkopf laments can say the same? No doubt some of them. But equally as little doubt that many of them hold greater interests that are primarily regional and nationalistic in nature.

Ultimately, I think Rothkopf sees this as well. And none of the foregoing is to suggest that the current turmoil in the Middle East, the sectarian radicalism, even the threats that are directed against the United States (such as by AQAP) are untroubling or may be safely ignored. Far from it. But if we think simply about the changing dynamics in the Middle East as an extension of the “war we went to fight” in 2001 – even in the interest of rhetorical connection – we empower those who would simply extend existing war authorities, and will be missing the opportunity, and the imperative, of describing the world’s current problems for what they are.

Senate Foreign Relations Committee Takes on the AUMF

by Deborah Pearlstein

As several of my friends at Just Security and Lawfare have noted, the Senate Foreign Relations Committee on Wednesday held an, um, interesting hearing on whether the primary domestic law authorizing the use of force against Al Qaeda, the Taliban and associated forces needs to be repealed or revised. Witnesses’ written statements and (more interesting) video of the hearing is here. The hearings featured current DOD General Counsel Stephen Preston, Principal Deputy Legal Adviser at the State Department Mary McLeod, followed by former (Obama) State Department Legal Adviser Harold Koh and former (Bush) Attorney General Michael Mukasey.

The Administration witnesses took a pounding. Some of the harsh questioning was, as ever, partisan bombast seeking to score pre-election points. Some of it was the members’ impatience with the complexity of the (overlapping) domestic and international law in the area. But some of it was the members’ understandable difficulty in trying to follow the witnesses’ at times needlessly confusing responses, viz. “Q: Give me a sense of what you get from the AUMF that you don’t have under existing statutory or constitutional law? A: “…I think it would be fair to say that with or without an AUMF, to the extent that it grants authority for the use of military force against Al Qaeda, the Taliban, and associated forces, in which we are in armed conflict, to the extent that those groups continue to pose a threat of imminent attack against this country, the President does have constitutional authority to act….” And some of it was genuine frustration, viz. “Q: If a bill was introduced today to repeal the [2001] AUMF, would the Administration’s position be support, oppose, or I don’t know? A: As of today, Senator, I think the answer is, we don’t know.”

So does the Administration really think the President’s authority under Article II of the Constitution gives it all the power it needs, even without the AUMF? If one is concerned about this kind of broad inherent executive authority, and if all agree the Al Qaeda of 9/11 is diminished and the nature of the threat of terrorism is evolving, doesn’t that necessarily mean we need new statutory authority to define or constrain the President’s ability to go after these evolving threats? My view: no and no. Here’s why. (more…)

Circling Back to that Existence of Armed Conflict Discussion

by Deborah Pearlstein

Last week saw a set of posts, across the law-and-security blogs, about whether an armed conflict existed at the time current commission defendant Abd Al Rahim Hussayn Muhammad Al Nashiri was allegedly involved in planning the October 2000 bombing of the U.S.S. Cole. See, e.g., Frakt, Vladeck, Heller, and Margulies. While I’ve written about this at length elsewhere, after reading the posts, I find myself disagreeing (at least in part) with pretty much all of my friends on the question of who can/must decide the answer to the existence-of-armed-conflict question. Here’s my thinking. (more…)

Detention Post-Gitmo II: A Surreply to Steve Vladeck

by Deborah Pearlstein

Thanks to Steve Vladeck for his thoughtful response to my critique of his paper posted earlier this week. In great sum, Steve has a paper out proposing that the United States hold the remaining Gitmo detainees in the United States under a domestic immigration detention statute to ease the way for Congress to repeal the AUMF statute (under which authority the Gitmo detainees are currently held). I advanced several legal and policy arguments against the proposal. Steve’s post yesterday is a response to my concerns. While I think my original post still speaks for itself, I did want to clarify a few points I think Steve’s characterization of my argument obscures.

First, Steve suggests that my argument assumes “that countries will be lining up to receive” the Gitmo detainees this administration has identified as unprosecutable but “too dangerous to release.” My claim was actually quite a bit different – namely, that it was likely that “at least a fraction” of the 4 dozen “too dangerous to release” detainees might be repatriated by their home countries if the United States sought to return them. It’s important to caution here that of course both Steve and I are laboring in the dark; the administration has not made public information about which 4 dozen detainees it thinks falls into this category or why. But let’s imagine for the sake of argument the number is only 1 of the 4 dozen who could be repatriated. Why does it matter to my concern about Steve’s proposal? To see that, let’s play the proposal out.

Here’s the scenario: Congress has lifted the statutory prohibition against the transfer of Gitmo detainees to the United States. (This move is a necessary precondition for Section 412 to apply at all – it kicks in only once aliens are in the United States.) The AUMF is repealed. In order for Section 412 to apply at all, the administration will have to institute removal proceedings for all the detainees to have any lawful basis for continued detention of any of them. Under current policy as I understand it, all detained immigration removal proceedings (i.e. removal proceedings carried out while the potential deportee is in custody) are to be expedited, meaning an initial appearance 2-3 weeks after the beginning of immigration detention. Now imagine Detainee X (of the 48) concedes his removability, for example, by admitting yes indeed I endorsed/espoused whatever Al Qaeda said. Let’s further imagine his home country says (for a variety of reasons), “Sure, we’ll take him back, here are diplomatic assurances he won’t be tortured.” Section 412 proceedings are now over; they’ve taken about a month. The U.S. government now has no further legal basis for continuing to hold Detainee X. He is able to be deported, and Section 412 detention authority lasts only until this deportability condition has been met. This is the case even if Detainee X’s home country is politically unstable, and has made no promises about continuing to detain him there or about taking any other security measures. It is conceivable Congress could amend Section 412 further to authorize preventive detention under more conditions than just deportation; but this is a broader preventive detention statute than Congress has been willing to authorize in the 13 years post-2001, and it would pose novel and serious constitutional questions about an expansion of immigration detention authority outside of armed conflict that the Supreme Court has never upheld. As it stands then – and given the administration has said Detainee X is too dangerous to release anywhere – my point was that it is hard to imagine that the rapid release of Detainee X – even a release overseas – is an outcome this administration (or any administration) in good faith wants to seek.

Second, Steve accuses me of having offered no better alternative than the status quo. To that I plead more or less guilty. My original post actually offered no alternative proposal at all, it merely suggested we evaluate Steve’s proposal by considering whether his option is “better than, for example, letting the detainees litigate claims that existing AUMF detention authority runs out at the end of relevant hostilities.” For reasons I stated before, I continue to think Steve’s option isn’t clearly better than the currently existing alternative. But I also think it fares worse when compared to other alternatives (not just the status quo) one can imagine.

Suppose, for example, the AUMF stays on the books for now, and the administration finally succeeds in persuading the Congress to do the one thing it has tried to do from the beginning: allow the Gitmo detainees to be transferred to a detention facility here in the United States. As heavy political lift as that is (impossible so far, and especially hard to imagine now in the 6 months before midterm elections), it is still presumably easier to accomplish than moving them here and also repealing the AUMF. On the upside of this scenario, Gitmo is closed – no small matter itself. From that, we may hope to glean some modest diplomatic benefit from taking a key step forward, some modest strategic benefit from the removal of a uniquely destructive symbol, and some increase in domestic political urgency to return those many dozens of detainees who have long since been cleared for release.

Downsides of course, (1) there are still dozens of men in long-term detention and (2) the AUMF is still (for now) on the books. Take each in turn. For the detainees, conventional wisdom holds (with good reason) that their conditions of confinement would be quite a bit worse in standard domestic federal Supermax prisons than they are at Gitmo currently. But with the AUMF still on the books, there would be Geneva-based arguments about what conditions their continued detention (by the Defense Department) must satisfy. We’d still have a president motivated– and working – to get the majority sent home, with processes extant (an administrative review system, along with repeated habeas petitions) to check that progress (at least marginally). We’d also I think have growing pressure from the courts (no matter who’s president); the more time passes, the stronger the argument becomes (depending arguably some on the detainee) that hostilities are over and the AUMF no longer authorizes their detention. (And Section 412 remains as the kind of limited backstop it was intended to be if the courts do conclude the AUMF no longer applies in a particular case.) In short, for the detainees themselves, we’d be essentially where we are now – and arguably better than where we would be under the Section 412 theory in which they are held in federal civilian custody – with some of them in long-term detention subject to best efforts and increasing pressure to send them home.

That leaves the continued existence of the AUMF. As much as I embrace the President’s call to move to a post-war counterterrorism framework, I am not at all sure the significant legal and policy costs associated with Steve’s proposal (some I’ve identified, some Steve himself has) will change enough about U.S. policy in the coming two years to be worth it. Under the current administration, the use of the AUMF as a source of detention authority has diminished dramatically. It has been used for detention outside of Afghanistan on a tiny handful of occasions and for limited time periods before criminal prosecution. (The success of the criminal system in handling these cases, coupled with the absence of an off-shore facility in which to house detainees, will make future use of the statute for detention purposes trickier for any future administration as well.) The greater issue with the AUMF’s continued existence is I think targeting; it remains as a literal loaded gun for use against “associated forces” of our enemies (whomever and wherever they may be). Here, too, we have seen a significant drop in the frequency of U.S. drone attacks over the past year or so, as the security community itself has started to recognize the tremendous political, diplomatic, and strategic counterterrorism costs associated with the heavy use of lethal targeting outside Afghanistan. More important, the key concerns about the AUMF center not on the existence of targeting authority per se (no one denies it is sometimes permissible for states to use force in other states), but on how and against whom it is used. Amending the AUMF to impose or clarify limits on the scope of the targeting authority permitted under that statute going forward could in principle address these significant concerns – while avoiding creating new statutory and constitutional dilemmas to resolve. Such amendments, too, would involve a very tough legislative lift – but still I imagine an easier one than would be required to secure not only the necessary amendments to Section 412 noted above, but also flat-out repeal of the AUMF.

On Steve Vladeck’s Post-AUMF Detention

by Deborah Pearlstein

Nothing like spring break (yes, we break right before semester’s end) to do a little catch-up reading – starting this week with Steve Vladeck’s new essay grappling with one of the nation’s most intractable problems: closing Guantanamo. Among the many challenges associated with the prison’s continued existence, Steve highlights its role in preventing serious consideration of repealing the AUMF (the federal statute authorizing the use of military force against Al Qaeda and associated groups). The Gitmo detainees are held under the domestic authority of the AUMF; as long as the government wishes to continue to hold at least some of the Gitmo prisoners (as it does), Congress can’t repeal the law without risking their potential release. Despite the winding down of U.S. operations in Afghanistan, the serious weakening of core Al Qaeda, and the President’s announced desire to move the nation away from a permanent wartime footing – AUMF repeal is essentially impossible as long as we are concerned with maintaining the legality of the Gitmo prisoners’ detention under domestic law.

So how to keep Gitmo from becoming the detention tail that wags the wartime dog? Steve proposes that even without an AUMF, we could continue to hold the approximately 45 Gitmo detainees the executive sees as the intractable core (those the administration has designated unprosecutable but too dangerous to release) under the authority of another federal law: Section 412 of the USA PATRIOT Act of 2001. Section 412 – which Steve notes has not been used once since its enactment in 2001 – requires the Attorney General to take into custody any alien he has reasonable grounds to believe is (for example) a member of a terrorist organization, or endorses or espouses terrorist activity, or “is engaged in any other activity that endangers the national security of the United States.” The alien may be detained for up to a week until the commencement of immigration removal proceedings or criminal prosecution, or for “additional periods of up to six months” if his “removal is unlikely in the reasonably foreseeable future,” and if release “will threaten the national security of the United States or the safety of the community or any person.”

Steve’s diagnosis of the relationship between Guantanamo Bay and the AUMF is spot on in some critical respects. The uniquely problematic nature of the Guantanamo detention program skews the current debate about the need for continuing use-of-force authority, just as surely as it has skewed broader debates about U.S. counterterrorism detention, trial, and interrogation policies for the past dozen years. For a host of reasons, the Gitmo population is singularly unrepresentative of the challenges that would be posed by counterterrorism detention or trial following the arrest of any terrorism suspect today: Gitmo detainees were denied basic Geneva protections (including any initial hearing about who these men actually were); some detainees were transferred there following periods of unlawful (even torturous) detention elsewhere; criminal counterterrorism laws that are today used for prosecution were much narrower extrajudicial scope in 2001; Congress maintains unprecedented restrictions on the transfer of detainees to the United States for any purpose; and so on. Indeed, as Steve recognizes, given all that has gone before, closing Gitmo now involves only bad options; the policy task is to choose which among these bad options is least worst under the circumstances.

Despite the low bar, I have to admit I’m still unconvinced that Section 412 is the least worst way to go. (more…)

More on the Al Qaeda Name

by Deborah Pearlstein

For those who try to keep up with the shifting nature of radical Islamist groups – groups too many in the media sometimes wrongly link to Al Qaeda –the stories earlier this week on the group formerly known as Al Qaeda in Iraq, now calling itself ISIS, are significant:

Early Monday morning the leadership of al-Qaeda disowned Islamic State of Iraq and Greater Syria (ISIS), the most effective of its two franchises fighting in Syria, in a maneuver that could alter the trajectory of the fight against President Bashar Assad. In a message posted on jihadi websites, the al-Qaeda general command stated that its former affiliate “is not a branch of the al-Qaeda group [and al-Qaeda] does not have an organizational relationship with it and is not the group responsible for their actions.”

Evidently not among those trying to keep up with the latest – the U.S. House Foreign Affairs Committee, which today held a hearing entitled: “Al-Qaeda’s Resurgence in Iraq: A Threat to U.S. Interests.”

Global Military Justice Reform

by Deborah Pearlstein

Excited to see news of a new blog by former National Institute of Military Justice head Gene Fidell on military justice systems worldwide. Here’s a description:

Developments in the field of military justice have been coming at an extraordinary pace for the last several years, both in the United States and around the world. Some of these developments have been wise, some have not. In some respects, there has been remarkable resistance to change. The purpose of this blog will be to identify and comment on developments in the reform of military justice from a national and global perspective.

Welcome to the blogosphere GMJR!

Al Qaeda in the Headlines

by Deborah Pearlstein

Put the words “Al Qaeda” in a news headline, and you inevitably conjure a very particular idea in the mind of the American reader. “Al Qaeda” is the group that attacked the United States on 9/11. The group led by Osama bin Laden (now led, some might recall, by his successor, Ayman Zawahiri). The group we’ve been at war with for the past decade-plus, and that would gladly attack us again when it has the chance. It’s the group (legal-minded readers would add) whose members the President is authorized by the AUMF statute to detain indefinitely or target lethally. It’s a term, in other words, that has specific and powerful meaning in our political and legal life.

But the recent reporting on the takeover of Falluja in Iraq by an “Al-Qaeda-linked” group obscures a much more complicated reality than the one conjured by the brand name “Al Qaeda.” (Among the recent headlines: “Qaeda-Linked Militants in Iraq Secure Nearly Full Control of Falluja” in the New York Times; “U.S. Won’t Ship Iraq The Weapons It Needs to Fight Al Qaeda” (describing “Fallujah’s fall to al Qaeda”) in Foreign Policy.)

Read even a little bit past some of the headlines (ok, typically about ten paragraphs past, more often in a different story altogether) and one learns that the group that took over Fallujah is a radical Islamist group called the Islamic State of Iraq and the Levant, or the Islamic State of Iraq and Syria (ISIS). True, the same group (more or less) was once known as Al Qaeda in Iraq (AQI) (one of about a half-dozen changing names in the mix over the past decade), but the name changed again about a year ago to reflect the group’s growing aspirations and involvement in Syria as well.

Ok, but just because the group is now called ISIS rather than AQI doesn’t mean reports are wrong to call it Al-Qaeda-linked, right? Fair enough, a rose by any other name, etc. So how can one tell whether a group is actually Al Qaeda affiliated or not?

As Harold Koh reminded us at the AALS conference last week (great panel put together by the Section on National Security Law), what matters in the domestic legal sense (in the sense Congress and the Administration and courts have used it in interpreting the 2001 AUMF) is whether these groups are “co-belligerents.” While the term lacks anything like the certainty in international law that many administration lawyers seem to think it has, the Administration at least has adopted a multifactor test for what it thinks co-belligerency means: (1) an organizational affiliation such that Zawahiri’s Al Qaeda is capable of exercising a degree of command and control over the associated group; (2) evidence that the associated group has in fact “joined the fight”; (3) “the fight” that the associated group has joined is against the United States. If the group doesn’t meet those criteria, it doesn’t fit within the definition of the law.

Let’s start with organizational control. As best I can tell from published reports, one of the main sources of in-fighting amongst Islamist rebel group in Syria stems precisely from the fact that ISIS is not following orders from Zawahiri. Here’s Sarah Birke’s recent article (once again headlined, “How al-Qaeda Changed the Syrian War”) from the New York Review of Books describing the evolution:

[ISIS founder] al-Baghdadi decided it was time to merge [another radical Islamist group, Jabhat al-] Nusra, with Al Qaeda in Iraq, expanding the geographical spread of the organization, which doesn’t recognize national borders but seeks to unite the entire umma, or Muslim community of believers, under one rule. He declared the two branches would be known as the Islamic State of Iraq and al-Sham. Al-Sham refers to Greater Syria, the whole expanse of the Levant that holds a special place in jihadist thought for being the heart of the region and close to Jerusalem. But Jabhat al-Nusra’s leader Mohammed al-Jolani, who is Syrian, refused the merger, possibly because it had not been sanctioned by al-Qaeda’s chief, Ayman Zawahiri, who later ruled that the two groups should remain separate (a ruling ignored by the ambitious Baghdadi, leading some to consider ISIS outside al-Qaeda). In fact, while ISIS and Nusra share many aims, and both are well funded and trained, there are significant differences between the two groups. Jabhat al-Nusra stresses the fight against Assad, while ISIS tends to be more focused on establishing its own rule on conquered territory. Nusra has pursued a strategy of slowly building support for an Islamic state, while ISIS is far more ruthless, carrying out sectarian attacks and imposing sharia law immediately. And while Nusra, despite its large contingent of foreign fighters, is seen as a home-grown problem, Syrians at the border frequently described Da’ash as foreign “occupiers” in their country.

Indeed, while Zawahiri has been trying to assert Al Qaeda’s authority over both ISIS and its rival Islamist group Al Nusra, neither group has been a model of compliance. In a videotaped aired by Al Jazeera two months ago, Zawahiri blamed the leaders of both groups for acting without the knowledge of the central al-Qaeda leadership, and ordered the re-organization of jihadist efforts in Syria and Iraq by abolishing ISIS and giving Al Nusra sole responsibility for Syria. ISIS, however, has shown no sign of curtailing its Syrian operations. Indeed, Foreign Policy separately reports that ISIS arrested, and has probably killed, a Jabhat al-Nusra commander in the city of Raqqa. Despite all this, the Times in particular is fond of citing the “black banners of Al Qaeda” as evidence that ISIS, et al. remain tied to the same mast, as it were. But terrorist experts have regularly pointed out the popularity of the black flag with the white lettering among a range of Islamist groups across the region. As Aaron Zelin, co-author of a recent West Point Counterterrorism Center report, put it: “Just because they have a flag does not necessarily mean they are al Qaeda. Anybody could use a flag like that.”

Beyond all this, there’s no evidence I’ve been able to unearth that ISIS has in fact “joined the fight” against the United States. On the contrary, as Dan Byman recently reminded us: “AQI’s focus on Iraq’s Shi’a government and population was never in harmony with the Al Qaeda’s core’s focus on the United States and the West.” While ISIS’s radical Islamism, and of course regional sectarianism more broadly, may well have a host of troubling implications, it is far from the same kind of danger to the United States posed by a group – the Al Qaeda of 2001 the name still evokes – with both the means and the motive to attack the United States directly.

Which brings me back to the original point. Whether or not ISIS is lawfully subject to the use of force authorized by the 2001 AUMF – and I am so far unpersuaded that it is – use of the name “Al Qaeda” in headlines has political consequences in our public debate. If it’s really that Al Qaeda, political pressure to use force in Iraq (and everywhere else) will build. If it’s something else – a group with different aims, a different focus – then our strategy may well and wisely be quite different.

Journalists trying to report from the nightmare of Syria and Iraq are doing a brave and important service; more than one has died trying to do it. But the headlines are misleading. We should all read more about what’s going on in Syria and Iraq. And if we don’t know what or who, we should be able to read that, too.