Guest Post: Gabor Rona on the AUMF Discussion

by Gabor Rona

[Gabor Rona is a Visiting Professor of Law and Director, Law and Armed Conflict Project at Cardozo Law School.]

Just Security and Lawfare have published dueling AUMF reform proposals, here and here. (The proposals are not those of Just Security or Lawfare, but rather, those of the individual authors. For ease of reference, I’m calling them Just Security and Lawfare.) At the moment, there are also dueling posts on the two websites about the meaning of the Just Security proposal’s sunset provision. In fact, there are bigger fish to fry.

There’s quite a bit of agreement in the two proposals, as Ben notes in his responsive post at Lawfare, but he takes issue with the Just Security proposal’s principle #1: that a new AUMF should be “ISIL-specific and mission-specific.” Ben wants to include Al Qaeda and the Taliban, but the fact is that while the Just Security proposal is limited to ISIL, it does nothing that would conflict with executive powers to use force elsewhere. Both proposals contemplate force against ISIL and “associated forces,” but the Lawfare proposal explicitly adds Al Qaeda and the Afghan Taliban. This addition appears to be a critical distinction between the two proposals, since they both also envision repeal of the 2001 AUMF against those responsible for 9/11 and those who harbor them (Al Qaeda and the Taliban) and of the 2002 AUMF against Saddam’s Iraq. Ben fears, mistakenly, that the Just Security proposal would leave our residual forces in Afghanistan legally naked. Here’s why he’s wrong.

The U.S. mission in Afghanistan hasn’t ended, but it has changed. The two international legal elements for armed conflict no longer exist. The first element is frequent and/or severe attacks. Fact is, it’s been quite a while since there have been either frequent or severe hostilities between the US and Al Qaeda/Taliban, whether in Afghanistan, Pakistan or elsewhere on the planet. The drawdown of coalition troops and the limits imposed on those that remain make it difficult, if not impossible, for frequent or sever hostilities to persist. The second element for armed conflict is that the attacks be conducted by organized entities with a command structure, such that they are capable of being considered “a party” to armed conflict and subject to the laws of war. Whether you prefer to think of Al Qaeda as having “metastasized” or “dissipated,” there’s plenty of reason to doubt that “it” is no longer an “it” with the requisite command structure.

Another way to view the situation is that we’ve gone from war in Afghanistan, where force may be employed offensively, to non-war, where force may be employed defensively. The point for AUMF purposes is this: while US troops may need congressional authorization to prosecute a war, they do not need congressional authorization to defend themselves. That’s because the executive has inherent authority to order, or permit, our forces to defend themselves in the event of attack or imminent threat.

Bottom line # 1: while the Lawfare proposal is more emphatic about repeal of the two AUMFs than is the Just Security proposal, it is the Just Security proposal’s limitation to ISIL that more genuinely melds facts on the ground with applicable law, while doing nothing to compromise the executive’s constitutional powers to use force in self-defense.

Ben’s concerns aside, both proposals fail to deal effectively with the flawed notion of “associated forces.” Section 2b of the Lawfare proposal says that the “authorization of force (against Al Qaeda, the Islamic State, and the Afghan Taliban) extends to associated forces of (those) entities . . . insofar as such forces are engaged in hostilities against the United States.” There are two things wrong here.

First, the very notion of “associated forces” as a construct to widen the net of war is wrong. There is no such notion in international law, and for good reason. There is a notion of “co-belligerency” applicable to wars between states. This notion exists to remove the protections of the law of neutrality when State C interferes in a war between States A and B. But there is no neutrality principle applicable to non-State armed groups, so the US’s doctrine asserting the right to engage against “associated forces” by analogy to the concept of co-belligerency is flawed. In fact, the notion of war against X and its “associated forces” is little different than the notion of global war, absent refinement of the associated forces concept.

Second, the Just Security proposal also endorses the “associated forces” concept and is, therefore, also flawed, but it at least requires a narrow definition of that term, “to include only those groups that are acting in concert with ISIL as parties to the armed conflict against the United States…” The Lawfare proposal does not define “associated” and applies to any forces “engaged in hostilities,” a much broader frame than “acting in concert with ISIL as parties to the armed conflict…”. It’s questionable that ISIL or any of its alleged associated forces are “engaged in hostilities against the United States.” As far as I’ve seen, the hostilities have been pretty much a one-way street, with U.S. bombings of ISIL. To maintain this asymmetry is why, I suppose, Americans don’t want U.S. boots on the ground.

Bottom line # 2: if you want to authorize use of force against “associated forces” rather than specific named entities (although I recommend against it for the reasons stated above) do so with the Just Security proposal’s reference to “parties to the conflict” rather than Lawfare’s “engaged in hostilities.”

The Significance of Bin Laden’s Killing

by Greg McNeal

The killing of Osama Bin Laden is no doubt a significant victory in the conflict with al Qaeda (see Michael Lewis’ post here).  However, contrary to Peter Bergen’s assertion that “Killing bin Laden is the end of the war on terror. There is no one to replace him in Al Qaeda. Bin Laden was the guy who fought against the Soviet Union and the United States. No one in the network is like that..” I’m not convinced.

But don’t take my word for it, the jihadist’s are not convinced either, just consider what they are saying in the jihadist forums:

  • “We were not fighting for Osama. We were fighting for Allah. The Jihad will continue even if the Amir [leader] is Shaheed [martyred]!!”

  • “Those who fought for shaykh usaamah, know that shaykh usaamah has passed away, but those who fought for Allaah, know that Allaah is alive and will never die”.

  • “a million new bin Ladens will be born! And the flag of jihad will be raised! Inshallah”.

The President declared in his speech that killing Bin Laden was his top priority upon taking office, this differs a bit from his statements on January 15, 2009, when he noted that killing Bin Laden wasn’t essential, rather keeping al Qaeda on the run was the key to strategic success.  The linked story admittedly notes the importance placed on capturing or killing Bin Laden, but it’s set in a broader strategic context that required placing pressure on the entire al Qaeda network.  That network, despite the killing of Bin Laden, still exists.

As Jason Burke noted in a 2004 piece for Foreign Policy entitled Think Again: Al Qaeda (firewalled):

“Capturing or Killing Bin Laden Will Deal a Severe Blow to Al Qaeda”

Wrong. Even for militants with identifiable ties to bin Laden, the death of the “sheik” will make little difference in their ability to recruit people. U.S. Secretary of Defense Donald Rumsfeld recently acknowledged as much when he questioned in an internal Pentagon memo whether it was possible to kill militants faster than radical clerics and religious schools could create them. In practical terms, bin Laden now has only a very limited ability to commission acts of terror, and his involvement is restricted to the broad strategic direction of largely autonomous cells and groups. Most intelligence analysts now consider him largely peripheral.

This turn of events should surprise no one. Islamic militancy predates bin Laden’s activities. He was barely involved in the Islamic violence of the early 1990s in Algeria, Egypt, Bosnia, and Kashmir. His links to the 1993 World Trade Center attack were tangential. There were no al Qaeda training camps during the early 1990s, although camps run by other groups churned out thousands of highly trained fanatics. Even when bin Laden was based in Afghanistan in the late 1990s, it was often Islamic groups and individuals who sought him out for help in finding resources for preconceived attacks, not vice versa. These days, Islamic groups can go to other individuals, such as Jordanian activist Abu Musab al-Zarqawi, who set up his al Tauhid group in competition with bin Laden (rather than, as is frequently claimed, in alliance with him) to obtain funds, expertise, or other logistical assistance.

Bin Laden still plays a significant role in the movement as a propagandist who effectively exploits modern mass communications. It is likely that the United States will eventually apprehend bin Laden and that this demonstration of U.S. power will demoralize many militants. However, much depends on the manner in which he is captured or killed. If, like deposed Iraqi President Saddam Hussein, he surrenders without a fight, which is very unlikely, many followers will be deeply disillusioned. If he achieves martyrdom in a way that his cohorts can spin as heroic, he will be an inspiration for generations to come. Either way, bin Laden’s removal from the scene will not stop Islamic militancy.

That Islamic militancy importantly includes other al Qaeda off-shoots such as al Qaeda on the Arabian Peninsula.  In February 2011, Michael Leiter, National Counterterrorism Center Director said in testimony before the U.S. House Homeland Security Committee “I actually consider Al Qaeda in the Arabian Peninsula, with Al-Awlaki as a leader within that organization, is probably the most significant risk to the U.S. homeland.”

I’m hopeful that Bin Laden’s death spells the demise of al Qaeda, but hope alone won’t change the reality of a global movement dedicated to attacking America.  Others may see the same thing, but will attribute it to a “military-industrial complex” that makes money off of wars.  Whatever your root cause explanation, this conflict is probably not ending anytime soon.

Cross-posted at LawandTerrorism