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Lawfare Podcast on al-Bahlul

by Kevin Jon Heller

While in DC last week for the ICC/Palestine event at George Mason — I’ll post a link to the video when it becomes available — I had the pleasure of sitting down with Lawfare’s Wells Bennet and Just Security’s Steve Vladeck to discuss the oral argument at the DC Circuit on the al-Bahlul remand, which the three of us attended that morning. You can listen to the podcast at Lawfare here; Steve did most of the talking, because he understands the constitutional issues in the case better than anyone, but I weighed in a few times on the international-law side. I hope you enjoy it — and my thanks to Wells for inviting me to participate.

Events and Announcements: September 14, 2014

by Jessica Dorsey

Events

  • The Raoul Wallenberg Legacy of Leadership event will take place in New York on September 18th at Yeshiva University’s Cardozo School of Law. The event will include a panel discussion about the responsibility to prevent genocide and mass atrocities as well as keynote addresses by Jan Eliasson, Deputy Secretary-General of the United Nations, Irwin Cotler, former Canadian Minister of Justice, and Luis Moreno Ocampo, former Chief Prosecutor for the International Criminal Court. The event will take place September 18, 2014, 5:00 pm to 7:00 pm at the Moot Court Room, Benjamin N. Cardozo School of Law, 55 5th Avenue, New York. Interested persons can register online by clicking here.
  • The American Society of International Law and the New York Law School Panel Discussion on “The Need for a Disability Rights Tribunal in Asia and the Pacific,” Monday, September 29th at 185 West Broadway, New York, New York, 10013. The existence of regional human rights courts and commissions has been an essential element in the enforcement of international human rights for persons with disabilities in those regions of the world where such tribunals exist. The lack of a court or commission in Asia and the Pacific has been a major impediment in the movement to enforce disability rights. The need for such a body has further intensified since the ratification of the United Nations’ Convention on the Rights of Persons with Disabilities (CRPD). The creation of a Disability Rights Tribunal for Asia and the Pacific (DRTAP) would be the first necessary step leading to amelioration of the deprivation of civil rights of people with disabilities. Panel Members include Eva Szeli, former director of European Operations for Mental Disability Rights International, and co-author of International Human Rights Law and Comparative Mental Disability Law: Cases and Materials (Carolina Academic Press 2016); Maya Sabatello, lecturer on human rights and co-author of Human Rights and Disability Advocacy (U. of Pennsylvania Press 2013); Michael Stein, Harvard Law School & William and Mary Law School; co-director, Harvard Law School Project on Disability; and Moderator, Michael L. Perlin, New York Law School, Director, International Mental Disability Law Reform Project. For more information contact Michael Perlin (mperlin [at] nyls [dot] edu).

Calls for Papers

  • The International Organizations Interest Group of the American Society of International Law will hold a works-in-progress workshop on Friday, December 12th, 2014, in New York City.  Authors interested in presenting a paper at the workshop can submit an abstract to David Gartner (David [dot] Gartner [at] asu [dot] edu), Julian Arato (arato [dot] julian [at] gmail [dot] com), and Sarah Dadush (sdadush [at] kinoy [dot] rutgers [dot] edu)  by the end of the day on October 1, 2014. Abstracts should be a couple of paragraphs long but not more than one page. Papers should relate to the topic of international institutions and governance.  Papers should not yet be in print so that authors will have time to make revisions based on the comments from the workshop. 
  • The Utrecht Journal of International and European Law is issuing a call for papers on ‘Privacy under International and European Law’. Relevant issues may have broader implications, including: the responsibility of private actors under international law; privacy as a human right; the conflict between State interests and individual rights; the internet and territorial limits; data protection; diverging national approaches to the protection of privacy and the rise of The Board of Editors will select articles based on quality of research and writing, diversity and relevance of topic. The novelty of the academic contribution is also an essential requirement. Prospective articles should be submitted online via the website and should conform to the journal style guide. Utrecht Journal has a word limit of 15,000 words including footnotes. For further information please consult the website or email the editors at utrechtjournal [at] urios [dot] org. Deadline for Submissions: 30 September 2014.
  • The Board of Editors is pleased to announce Government Procurement as the theme for its next Special Issue (Vol. VII, No. 1). The Plurilateral Agreement on Government Procurement (‘GPA’) aims to promote transparency, integrity and competition in the purchase of goods and services by government agencies. Preferential treatment for domestic goods and services are envisaged as trade barriers. Participating governments are also required to put in place domestic procedures by which aggrieved private bidders can challenge procurement decisions and obtain redress in the event of inconsistency with the GPA. However, States have political and economic interests in promoting their own small and medium scale industries. Therefore, the attempt to harmonize these objectives raises issues with reference to market access and the benefits of “good governance” under the GPA. Existing literature is inadequate to effectively equip policymakers to deal with such issues. The Board of Editors is pleased to invite original and unpublished submissions for the Special Issue on Government Procurement for publication as ‘Articles’, ‘Notes’, ‘Comments’ and ‘Book Reviews’. Manuscripts may be submitted via e-mail, ExpressO, or the TL&D website. For further information and submission guidelines, please visit the Journal’s website: www.tradelawdevelopment.com. The last date for submission of manuscripts is 15th February, 2015. In case of any queries, please feel free to contact us at: editors[at]tradelawdevelopment[dot]com.

Announcement

  • The upcoming session of the Leiden University Advocacy and Litigation Training Course is now open for registration. The training will be held in The Hague from 24 November to 28 November 2014. During this 5-day course the participants will be trained in the skills of case theory, opening statements, direct examination (examination-in-chief), cross-examination, re-examination, closing statements and legal submissions skills. Students will be engaged in role play and practical exercises. The course will be concluded with a mock trial at the end of the week.  Apart from the theory and the practical exercises, the course offers visits to the International Criminal Court and the Special Tribunal for Lebanon. The training will be given by two experienced defence counsels who have worked on high profile cases before international criminal tribunals. The course fee amounts to €1100. Graduate students and professionals who wish to improve and develop their advocacy skills are invited to register through the Grotius Centre website.

Last week’s events and announcements can be found here. If you would like to post an announcement on Opinio Juris, please contact us with a one-paragraph description of your announcement along with hyperlinks to more information.

Guest Post: Update on Israel/Palestine and the Revival of International Prize Law

by Eliav Lieblich

[Eliav Lieblich is an Assistant Professor at the Radzyner Law School, Interdisciplinary Center (IDC)]

Back in January, I wrote a guest post  about prize proceedings initiated by the Government of Israel against the Finnish vessel Estelle, intercepted by the Israeli navy while attempting to breach the Gaza blockade in late 2012. As I wrote back then, the proceedings were held before the District Court of Haifa, sitting in its capacity as the Admiralty Court of Israel. The State based its application to condemn the vessel on old pieces of British legislation, which granted prize jurisdiction to courts in Mandatory Palestine (the British Naval Prize Act of 1864 and the British Prize Act of 1939).

As I noted back in January, prize powers have never been exercised by Israel before. Moreover, prize proceedings are extremely rare globally. Indeed, since customary prize law allows belligerents to capture and condemn private vessels – both “enemy” and, in some cases, “neutral” – prize law seems at odds with contemporary human rights norms protecting private property.

In this context, my January post raised several questions for the Haifa Court. Among these, I’ve questioned the continuous relevance of prize law in the human rights era, and whether Israeli administrative law will affect the Court’s understanding of prize law. Well, the wait is over: on August 31, the Court (Judge Ron Sokol), has rendered a 33-page decision in The State of Israel v. The Vessel Estelle.

I will spare the readers from detailing the Court’s finding of jurisdiction, although doubtless interesting to legal historians: the bottom line is that it has found itself to have inherited the jurisdiction from the former British prize courts in Palestine. But the Court had some interesting things to say in terms of substantive prize law. (more…)

So Much for Academic Freedom at the University of Sydney

by Kevin Jon Heller

There’s been much discussion in the blogosphere about the University of Illinois’ decision to “un-hire” (read: fire) a Palestinian-American scholar who resigned a tenured position at Virginia Tech to join its faculty, a decision motivated by a series of anti-Zionist (but not anti-Semitic) tweets that made the University’s wealthy donors uncomfortable. But the rightful revulsion at Illinois’ decision (more than 5,000 academics, including me, have agreed to boycott the University until Steven Salaita’s offer of a tenured position is honoured) shouldn’t obscure the fact that Illinois is far from the only university that does not take academic freedom seriously.

Case in point:  the University of Sydney’s distressing decision — abetted by one of its faculty members — to “un-invite” Sri Lankan NGOs from an international conference on the enforcement of human rights in the Asia-Pacific because of pressure from the Sri Lankan military. Here’s a snippet of the Guardian‘s story, which deserves to be read in full:

The University of Sydney has withdrawn invitations for two Sri Lankan human rights organisations to an international conference at the request of the Sri Lankan military, angering campaigners.

The university is due to host a two-day event in Bangkok from Monday along with the University of Colombo, which will see delegates from around the world discuss the enhancement of human rights in the Asia Pacific region.

Delegations from the Sri Lankan military and the Sri Lankan police are expected to attend the conference. Leaked correspondence, seen by Guardian Australia, shows that these delegations had originally requested that all non-government organisations (NGOs) from Sri Lanka be uninvited, and organisers subsequently rescinded two invitations.

The civil war in Sri Lanka, in which up to 100,000 people were killed, ended in 2009. The Rajapaksa regime stands accused of war crimes for its brutal suppression of civilians in the north of the country, with both sides subject to a UN human rights council inquiry into alleged war crimes.

Australia was one of 12 countries to abstain in a UN vote for the investigation.

Guardian Australia has also seen a letter discussing the reasons for rescinding the invitations to the two NGOs sent by the conference’s director, University of Sydney associate professor Danielle Celermajer.

“With about 130 people from across the region confirmed from the conference, it would be a disaster for all members of the Sri Lankan forces, who have been at the heart of the project, to withdraw,” it states.

As the article’s reference to the UN vote indicates, Tony “Difficult Things Happen” Abbott’s administration has proven to be one of the murderous Sri Lankan government’s staunchest allies. But that’s a right-wing government for you; no surprise there. It’s absolutely appalling, though, that a major Australian university cares so little about academic freedom that it would allow the Sri Lankan military to dictate who can attend a conference it sponsors — a conference about the enforcement of human rights in the region.

Dr. Celermajer says it would be a “disaster” for the academic conference if the Sri Lankan military didn’t attend. You know what an actual disaster is? The Sri Lankan military’s systematic violation of the human rights of hundreds of thousands of Sri Lankans — the very acts that make the conference in question so necessary.

I guess it’s more important to discuss human-rights violations among the perpetrators than among those who work to end the violations. Shameful.

NOTE: You can find the powerful open letter the Sri Lanka Campaign for Peace and Justice sent to participants in the conference — ironically entitled “Enhancing Human Rights and Security in the Asia Pacific” — here. Key line: “By allowing the Sri Lankan Army to dictate who can or cannot attend, the organisers of this conference are, in effect… potentially making themselves complicit in the Sri Lankan government’s systematic attempts to suppress dissent and intimidate critical voices within civil society, and to legitimize that policy internationally. “

Weekend Roundup: September 6 – 12, 2014

by An Hertogen

This week on Opinio Juris, summer vacation is officially over. We hope that all of our readers in the Northern Hemisphere enjoyed a great break – hopefully not quite like the Russian soldiers in Ukraine that Jens commented on. For those of us in the Southern Hemisphere: it’s almost summer!

Kevin followed up on an earlier post arguing that despite the recent release of a White Paper we do not yet know the CIA’s public-authority justification for violating 18 USC 1119, and explained why an argument based on Title 50 does not work in his view. He then posted a two-part response (1, 2) to Bobby Chesney’s reply on this last post over at Lawfare, and analysed their different readings of the AUMF.

The AUMF was also central to commentary on President Obama’s address regarding air strikes against ISIS. In anticipation of President Obama’s speech, Peter had put forward three reasons why President Obama should not seek congressional approval for airstrikes on ISIL. Jens was first out of the blocks after the address, to argue that Obama was walking a thin line, and later on that the AUMF does not cover ISIS. Peter and Deborah agreed with Jens on the applicability of the AUMF and Peter added that Obama could have played a different card. Deborah then followed up with an analysis of the theory that ISIS is Al Qaeda rather than considering it an “associated force”.

In other ISIL- related posts, Peter commented on Ted Cruz’ initiative to strip ISIL fighters from their US citizenship, and Kevin responded to a post by Mike Lewis over at Just Security on the application of the “unwilling or unable” test in the context of article 51 UN Charter.

Finally, Jessica wrapped up the news and I listed events and announcements. We’re running an insta-symposium on the Scottish independence referendum next week, and are still welcoming submissions. If you saw last week’s announcement by Matrix Chambers, you may want to take note that the deadline has been extended.

Have a nice weekend!

Mike Lewis Is Wrong About the Nature of Self-Defence

by Kevin Jon Heller

Mike Lewis has a guest post at Just Security today responding to Ryan Goodman’s recent post exploring what the US’s claimed “unwilling or unable” test for self-defence against non-state actors means in the context of Syria and ISIS. Ryan, careful scholar as always, rightly points out that the test “remains controversial under international law.” Mike doesn’t seem to have any such qualms, but that’s not what I want to respond to here. Instead, it’s important to note that Mike makes a basic error concerning how the “unwilling or unable” test functions — assuming for sake of argument it is a valid approach to self-defence under Art. 51 of the UN Charter (emphasis mine):

It is important to note that this interpretation does not give the US unlimited license to act in violation of the sovereignty of other states as some opponents of the standard claim. There are limits and dangers associated with taking such a course of action. First of all, an intervening state can only take such actions after giving the host/target state a meaningful opportunity to prevent its territory from being used by the non-state actor to launch attacks. In the case of Syria, there is no question that it is unable to control the territory under ISIS control so further delays are unnecessary. Secondly, the intervening state does so at its own peril. Syria can rightfully interpret any strikes as aggression by the US and it is justified in taking steps to prevent such attacks and to destroy the drones/aircraft conducting such attacks.

Um, no. The entire point of arguing self-defence — in any form, including pursuant to the controversial “unwilling or unable” test — is that it cures any violation of state sovereignty under Art. 2(4) of the UN Charter. So if the US attacked ISIS in Syria because Syria was unwilling or unable to prevent ISIS from using its territory as a base for attacks, the US would not violate Art. 2(4) and Syria would have no right whatsoever to act in self-defence against that armed attack. Indeed, any attempt to “prevent such attacks and to destroy the drones/aircraft conducting such attacks” would represent an act of aggression by Syria against the US, thereby opening the door to legitimate acts of self-defence against Syria itself.

Again, I don’t accept that the “unwilling or unable” test reflects current customary international law. But it’s important not to let that debate obscure how self-defence functions under Art. 51 of the UN Charter.

Matrix Chambers Application Deadline Extended

by Kevin Jon Heller

Matrix Chambers has extended the deadline for applying to September 26 — two weeks from today. I hope readers with the appropriate credential will consider applying.

You can find the original post, with details of the Matrix vacancy, here.

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.

Obama’s Lame Justification for the ISIL Strikes (He Played the Wrong Card)

by Peter Spiro

I’ll pile on in deploring the legal justification for the expanded operation against the Islamic State. No one is buying the AUMF basis. In addition to Jens below, Jack Goldsmith and Jennifer Daskal have devastating critiques here and here.

The justification could have lasting negative consequences for interbranch relations in the war powers context. The 2001 AUMF involved a context in which congressional authorization was necessary, the response to the 9/11 attacks comprising real “war” for constitutional purposes. It has now been deformed beyond all recognition. This will deter future Congresses from authorizing the use of force even where such congressional authorization is necessary.

It’s a little like Tonkin Gulf. That resolution gave the President what he needed to respond to an (alleged) attack by North Vietnamese forces. But the ensuing conflict was beyond anything that Congress could have imagined at the time, and it felt burned for a generation thereafter for having written what turned out to be a blank check. Depending on how the ISIL operation goes, Obama’s justification could result a similar kind of institutional resentment and distrust, which will make cooperation even more difficult than it already is.

Part of the disappointment here is that he had a much better card to play: longstanding historical practice. (This typically comes under an Article II/Commander in Chief label, though I don’t think you need the constitutional text to get there). The ISIL operation would have comfortably fit into the tradition of Presidents undertaking limited uses of force without congressional authorization. There would have been continuity to that argument — many would have disagreed, but I think the critique would have subsided in due course, because it would have enjoyed a strong basis in the practice. I don’t know if the critique of the AUMF justification is going to subside so quickly. The early returns are not promising.

The 9/11 AUMF does not cover ISIS

by Jens David Ohlin

Last night I blogged about Obama’s speech that outlined the administration’s plan to contain and destroy ISIS. I noted that Obama announced his intention to ask for congressional authorization for the plan while steadfastly maintaining that he did not need this authorization. He was vague about why. In my blog last night, I presumed that he was asserting that he had authority under his Article II commander-in-chief power.

Marty Lederman notes in the comments, as well as on Just Security, that this was not a reference to an Article II argument. A senior administration official released a statement last night confirming that Obama is relying on the 9/11 AUMF as an enduring authorization that covers the new military initiative against ISIS.

I find this argument implausible. Here is the relevant text of the AUMF:

IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

Since, al-Qaeda launched the 9/11 attacks, the AUMF covers al-Qaeda. It also covers organizations that planned, authorized, committed or aided the attacks, or organizations that harbored those organizations. Consequently, non-al-Qaeda organizations are covered by the AUMF insofar as they are connected to al-Qaeda in the right way.

This is a question of law application to fact, so it is necessarily a fact-dependent analysis. However, there appears to be little evidence that this link exists between ISIS and al-Qaeda. Of course, ISIS was once part of (or closely associated with al-Qaeda), and therefore at that time the AUMF arguably covered ISIS. Before its current manifestation, ISIS was considered an Iraq franchise of al-Qaeda, operating under the banner of Osama bin Laden and ostensibly subordinating itself under his operational control.

That relationship no longer exists. ISIS no longer operates under the banner of al-Qaeda, nor is it operationally subordinate to what is left of al-Qaeda core or any of the other al-Qaeda franchises. And famously, al-Qaeda effectively excommunicated ISIS for not following its central directives regarding target selection. Al-Qaeda officials correctly concluded that ISIS’s strategy was counter-productive because it alienated Muslims, and they promptly disassociated themselves from a group that was too radical even by al-Qaeda’s standards. So the operational link is broken, and has long-since been broken.

So what is the connection that the administration is asserting? They argue that

Based on ISIL’s longstanding relationship with al-Qa’ida (AQ) and Usama bin Laden; its long history of conducting, and continued desire to conduct, attacks against U.S. persons and interests, the extensive history of U.S. combat operations against ISIL dating back to the time the group first affiliated with AQ in 2004; and ISIL’s position – supported by some individual members and factions of AQ-aligned groups – that it is the true inheritor of Usama bin Laden’s legacy…

This is a weak argument. Yes, ISIS once had a relationship with al-Qaeda and Osama Bin Laden, but that prior relationship no longer governs. What matters is the current relationship. Furthermore, the fact that ISIS is the “true inheritor” of Bin Laden’s legacy is neither here nor there. In what sense is ISIS the “inheritor” of Bin Laden’s legacy? The only one I can think of is that ISIS represents the gravest Jihadist threat to the peaceful world — a position once held by Osama Bin Laden. Also, the fact that they threaten U.S. personnel and interests is an argument that proves way too much — plenty of other groups do that as well, which isn’t terribly relevant. None of this makes ISIS fit into one of the AUMF categories (planning, aiding, haboring, etc). Simply put, ISIS is not al-Qaeda.

Don’t get me wrong. I think ISIS represents the biggest threat to regional and national security since 9/11, and military force is warranted for that reason. Congress should immediately pass a new AUMF authorizing force against ISIS. I just don’t think that the original AUMF can be stretched to cover ISIS today. It’s a weak argument that sounds like a pretext to avoid making an Article II constitutional argument (which Obama presumably disfavors).

Obama Walks a Thin Line on ISIS

by Jens David Ohlin

A few minutes ago, President Obama addressed the nation to explain his new policy to contain and destroy ISIS. He is walking a fine line: more airstrikes but no direct ground invasion. Instead, he will fund, equip, and train foreign troops to engage in the ground fighting themselves. While this is a politically popular view (ground troops are always risky), it has serious operational deficits. The U.S. has a history of training and equipping foreign troops and the results are usually unimpressive. Too often the money gets diverted and the weapons have a longer shelf life than the military organization that receives them. What happens when the political winds in the region shift? The weapons will still be there, used by actors in ways we can’t now imagine. It won’t be a pretty sight.

Obama’s view on Article II was somewhat schizophrenic. He said that he was asking for congressional authorization for the operation, though he took great pains to emphasize that he didn’t technically need congressional assent. So he is trying to have his cake and eat it too: appear sympathetic to congress while at the same time upholding a strong view of the Article II commander-in-chief power.

Of course, he said nothing about the War Powers Resolution and why he feels that he could go ahead with the operation even in the absence of congressional authorization. He has been sending multiple War Powers letters to Congress each time the military engages in a discrete operation — suggesting that he believes that he can segment military operations into small bits and pieces in order to avoid the 60/90-day limit in the War Powers Resolution. That’s a dangerous precedent, since every war is just an aggregation of small military engagements. If the segmentation move works in this case, it will work in every case, and the 60/90-day limit will be meaningless.

As for international authority, he said nothing. Well, almost nothing. He said that ISIS was not a “state” — a fact which implicitly negates the need for international authority. For operations conducted in Iraq, the U.S. will be operating with the consent of the new Iraqi government, so no sovereignty issues will be triggered. In Syria, the situation is more complicated. U.S. forces will be acting with the consent of the opposition there, though whether Assad will give his consent to operations in Syria seems unlikely. But perhaps the U.S. will rely exclusively on proxy forces in Syria. He was vague on this. There was no discussion of Security Council authorization, though he did discuss the need for a coalition to fight ISIS.

My view is that ISIS represents a far greater threat than al-Qaeda ever posed. ISIS currently controls a large swath of territory and they have even larger ambitions. With a radical ideology and the territory to implement it against a domestic population, ISIS could create a home base for international jihad. Combine those ideological commitments with foreign fighters with foreign passports, and you have a recipe for disaster. Beheading a couple of journalists was only the beginning. And western countries aren’t the only ones to fear. ISIS has shown particular contempt and anger towards fellow Muslims who reject their radical vision. So the need for a broad coalition to defeat ISIS, with western and Middle East partners, is clear. Whether the plan outlined today is enough, I don’t know. I sure hope it is. Otherwise we will be staring at the new face of violent jihadism for the next decade.