Author Archive for
Deborah Pearlstein

The Question of Prosecution

by Deborah Pearlstein

The 525-page executive summary of the torture report released this week, and the debate that has followed thus far, is in many respects so dense it is a struggle just to decide where to begin engaging. Having spent years of my life as a human rights lawyer working on precisely these issues – preparing reports on secret detentions, and indeed detainee deaths in U.S. custody, among other things – and having spent plenty of days in shock and horror at what we learned then, I had come to feel almost inured to new revelations. Power drill to the head? We’d seen that earlier. Detainee died of hypothermia having been left mostly naked in his dungeon-like cell? Knew that too. But beyond the important new detail about our treatment of detainees the report offers, it is for me the facts the report reveals about the level of fundamental professional incompetence giving rise to this program, and the extent of the CIA’s efforts to keep information about it from other parts of our own government – including the director of the FBI and two U.S. secretaries of state – that leaves me newly in awe. Among the many telling (and I believe unrefuted) passages of incompetence (p. 11 of the Report): “Numerous CIA officers had serious documented personal and professional problems – including histories of violence and records of abusive treatment of others- that should have called into question their suitability to participate” in the interrogation and detention program. More, the private psychologists CIA hired to develop, operate and assess its interrogation program lacked any “experience as an interrogator, knowledge of Al Qaida, background in counterterrorism, or any relevant cultural or linguistic expertise.” Even as I continue to work through the text of the report, it is clear that it should be required reading for all Americans.

For now, though, I want to begin with one of the questions the report raises that I find much more difficult to assess: whether and how those responsible for the acts of torture described in the report should be held accountable. (more…)

On the Perennial U.S. War Powers Fight

by Deborah Pearlstein

For readers interested in the domestic U.S. law and history of how the U.S. government authorizes the use of force abroad, I had a little piece this weekend over at Daily Beast summarizing the state of play. Among other things, it laments not only the executive practice of not going to Congress as often as it should, but also the gradual loss of other checks on the war power the Constitution’s drafters expected would operate. Here’s a snippet.

The framers reasons for requiring congressional assent for engagements beyond [self defense] reflected their belief that war was “the greatest of national calamities” and should therefore require the agreement of more—not fewer—members of government. More, it was motivated by a commitment to political accountability in a democracy. Rejecting the British “new model” army of Oliver Cromwell and its associated tradition of tyranny and oppression, the framers thought our armed forces should be manned by the citizen-soldier, one incapable of being turned to oppress The People of which he was part. The People themselves would be called up to fight. The Constitution would require Congress publicly to authorize military expenditures “in the face of their constituents” every two years. And only Congress could vote to take the country into war. War would and should be impossible in a free society without The People and their representatives’ consent. Fast forward two centuries, and all these checks have long since ceased to function. The citizen-soldier gave way to national conscription, which in turn gave way to today’s all-volunteer force. The requirement that Congress publicly authorize all military funding has been weakened by today’s vast reliance on private contractors, making it easier for legislators to shield huge swaths of military-related spending from public view by lodging them in less visible appropriations for other departments…. Madison assumed individuals in power would be ambitious, would want to assert their views, and would want to use their power to affect change. Ambition in Congress would counteract ambition in the Executive, and the daily struggle would help keep all the branches in check. But ours has become a Congress lacking all ambition, preferring to hide in the shadows of presidents whose own political courage sometimes fails. Together, they have helped make it ever more possible for the American people to neither feel nor bear the costs of war.

On the Theory that ISIL is Al Qaeda

by Deborah Pearlstein

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? (more…)

Is it Legal? No.

by Deborah Pearlstein

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 highlighted, let me add this: ISIL is not an “associated force” of Al Qaeda by the Administration’s own definition. In May 2013, former State Department Legal Adviser Harold Koh gave a speech at Oxford setting forth the Administration’s definition of what counts as an “associated force” under the AUMF. (Let’s ignore all questions for now about whether this is an accurate importation of the concept of co-belligerency from international law and just accept the Administration’s version as a given.) Koh said: “The U.S. Government has made clear that an ‘associated force’ must be (1) an organized, armed group that (2) has actually entered the fight alongside al Qaeda against the United States, thereby becoming (3) a co-belligerent with al Qaeda in its hostilities against America.” Is ISIL organized? Surely. Has it “entered the fight alongside al Qaeda”? Absolutely not. Al Qaeda and ISIL are fighting each other. (See just about everywhere, but e.g., here.) Has it thus become a “co-belligerent with al Qaeda in [al Qaeda’s] hostilities against America”? Please.

So what about the constitutional theory, i.e. that the President has inherent authority under Article II of the Constitution as Commander in Chief to undertake the extended campaign he now contemplates? Here, too, this latest initiative takes the Administration several steps beyond even its own previously announced, already expansive understanding of the President’s constitutional authority – set forth in an Office of Legal Counsel memorandum in 2011 justifying the use of force in Libya without congressional authorization. Under the Obama OLC view, the President’s constitutional power permits him to use force without congressional authorization (1) if its use serves “important national interests,” AND (2) if the use of force doesn’t rise to the level of a “war” (based on the anticipated nature, scope, and duration of the planned operations), such that the power to launch it falls within Congress’ express constitutional power to “declare war.” Let’s set aside the troubling breadth of the first part of that standard (does the need to identify any broad “important national interest” really constrain presidential power?), and the inherent unpredictability of the second part (when was the last time a contemplated use of military force by the United States turned out just how we had “anticipated”). Let’s also assume that the broad standard “important national interests” is met here. At a minimum, the United States has an interest in supporting regional stability and protecting America’s various allies and interests ISIL has threatened.

But the ability to call the current engagement not-war pushes all envelopes. Here, unlike in Libya, the President himself has indicated defeating ISIL will be no short-term matter. Unlike in Libya, there is no pretense that the United States will be providing principally logistical support for an air campaign, with our allies doing the actual bombing. Here, according to the President, we will be leading the way, and we will be, in the administration’s own contemplation, engaged for some time. As for the prospect of not having “boots on the ground,” assurances on that matter already seem belied by the presence already of more than a thousand publicly known U.S. military and other personnel in the country – personnel whose safety has already been invoked to justify the use of escalated force. Call them “advisors” if one must, but they have feet, some of them undoubtedly clad in boots, all of them already on the ground. And more to come. The United States is engaged in an “armed conflict” in international law terms (already a non-international armed conflict in Iraq, and if we undertake bombing in Syria without that country’s consent, an international armed conflict as well). We will be using armed force. Many people will die. In other words, in any constitutional sense, this is war.

All this is before we’ve reached more difficult questions of international law, or questions of the Administration’s intention to comply, sooner or later, with the existing domestic War Powers Act, requiring Congress to authorize, sooner or later, any such prolonged entry of U.S. forces into hostilities. I’ll hope to address those separately. In the meantime, for all the uncertainty and challenge of the threat ISIL poses, the difficulty of the policy decisions that must have been involved here, the politics of the impending elections, the complexity of some legal questions in this field – this legal question is one of the easy ones. As a matter of law, the President needs additional authority from Congress. Asserting he has it already is wrong.

Hostages and Prisoners

by Deborah Pearlstein

I’ve been impressed by the number of questions I’ve fielded in the past few weeks from students, colleagues and media alike about whether the United States can and/or should pay ransoms or exchange prisoners for Americans held by various groups overseas. (I discuss the issue in short clips here and here.) Why did we exchange prisoners to rescue Bowe Bergdahl, but refused to pay ransom for James Foley? Is it illegal to pay ransom to these groups, or just a bad idea? Is it really a bad idea?

In the interest of consolidating some answers on a topic that raises a complex cluster of issues, I thought it worth summarizing some of them here – first on the topic of ransom for hostages taken by terrorist groups, then on the topic of prisoner exchanges more broadly. The upshot: It may well be the right policy decision in an individual case for a government not to pay ransom to a terrorist group, but the broader, categorical statement that “we don’t negotiate with terrorists” is neither historically accurate nor strategically wise. (more…)

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…)