Are today’s Drone Strikes still covered by the 2001 Congressional Authorization of Use of Force? (Currier)

Cora Currier writes at ProPublica:

Drone Strikes Test Legal Grounds for War on Terror

In his second inaugural address, President Barack Obama declared that “a decade of war is now ending.” White House press secretary Jay Carney later said there was “no question” that the U.S. conflict with al-Qaida was “entering a new phase.”

That day in Yemen, a U.S. drone strike reportedly killed three suspected al-Qaida militants. It was one of several strikes there that week and followed a spate of them in Pakistan. Outgoing Secretary of Defense Leon Panetta said this weekend that drone strikes “ought to continue to be a tool we ought to use where necessary.”

Like the war in Afghanistan, these and hundreds of other drone strikes have occurred under the authority of a concise law passed one week after 9/11. It reads:

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.

That law – known as the 2001 Authorization for Use of Military Force, or AUMF – is now more than 11 years old. Will it cover this “new phase” of war?

Obama, like President George W. Bush before him, has claimed that the 2001 authorization is the domestic legal basis of the authority to kill and detain not onlymembers of al-Qaida and the Taliban in Afghanistan but also their “associated forces.” Courts have largely agreed with that interpretation, and in 2011 Congress codified it in authorizing military detention.

A Justice Department memopublished Monday by NBC News – repeatedly cites Congress’ authorization in laying out the case for targeting a U.S. citizen “who is a senior operational leader of al-Qaida or an associated force.”

Officials note the AUMF does not have a geographic boundary. Individuals far from the “hot” battlefield in Afghanistan, officials have argued, can still be said to be engaged in an armed conflict with the U.S.

But legal scholars say the AUMF’s authority to detain and kill militants may be undermined if there is no “core” al-Qaida group to speak of, or when active conflict in Afghanistan ends.  It may also falter when it isn’t clear exactly how a group or individual is tied to al-Qaida – such as in the web of militant and extremist groups operating in Africa and elsewhere that may claim an affiliation or be ideologically aligned.

“There’s room for shoe-horning them into the AUMF,” says Robert Chesney, a professor at University of Texas School of Law. “But any honest assessment has to concede it’s not obvious that all the more loosely affiliated groups are encompassed.”

The AUMF doesn’t include an expiration date. But the law does have its limits, says Chesney. “It’s not claiming an armed conflict with all terrorism, but with al-Qaida and its associated forces. In theory, there can come an end.”

Last November, shortly before he stepped down as the Pentagon’s general counsel, Jeh Johnson gave a speech on that end. He spoke of a “tipping point,” when the U.S. counterterrorism efforts “should no longer be considered an ‘armed conflict’ against al-Qaida and its associated forces.” Counterterror efforts would then be aimed against individuals and could be handled primarily by law enforcement.

Johnson conceded it was hard to imagine that tipping point. There would be no “peace treaty” to mark it, he said, and he could “offer no prediction about when this conflict will end.”

A preview of the dilemma came in 2011, when the U.S. indicted a Somali man named Ahmed Abdulkadir Warsame in federal court in New York. Warsame was a member of Al-Shabaab, a group in Somalia, and had ties to al-Qaida in the Arabian Peninsula, but he was not connected to any plot against the U.S. He had initially been held by the military, but according to Newsweek reporter Daniel Klaidman, the Obama administration was unsure where he fit under the law.

Jack Goldsmith, a professor at Harvard Law School and former head of the Office of Legal Counsel for President Bush in 2003 and 2004, says “the AUMF is losing its efficacy. We’re in a place when we’re engaged in types of warfare that the nation hasn’t openly debated.”

The “shoehorn” approach may eventually run into legal gray area. Chesney points out that court decisions upholding military detention have generally been linked in some way to the conflict in Afghanistan. (So far, U.S. courts have not taken up lawsuits challenging targeted killing.)

“When the war in Afghanistan ends, and if core al-Qaida is decimated, how do we define who we are at war with?” says Hina Shamsi, director of the National Security Project at the American Civil Liberties Union.

Shamsi argues that the Obama administration is already relying on an overbroad interpretation of the AUMF to justify strikes against alleged militants in Yemen or Somalia without demonstrating precisely how they are associated with al-Qaida or engaged in anti-U.S. hostilities.

Militant groups have emerged as a threat in North Africa – some claiming an affiliation with al-Qaida. The degree to which those groups are plotting against the U.S. or interested in regional control is still being debated. The U.S. is expanding its presence in the region, butat least initially, the government says it is bolstering surveillance and training and assistance for local governments, not taking military action.

A Pentagon spokesman said last week he was “unaware of any specific or credible information at this time that points to an [al-Qaida in the Islamic Maghreb] threat against the homeland, but, again, I’m not ruling it out.”

The U.S. has provided refueling and cargo planes to assist the French intervention in Mali. That is lawful because France is acting “in response to a request for assistance from the Malian government,” Tommy Vietor, a spokesman for the National Security Council, told ProPublica.

Administration officials say strikes against al-Qaida and associated forces are permitted under international law on the basis of self-defense, in addition to the authority the AUMF provides under domestic law. The U.N. has been investigating targeted killings and civilian casualties from drone strikes.

In a case where the 2001 AUMF did not apply, the administration could seek a new authorization from Congress or rely on presidential powers to use force against an imminent threat.

Gen. Carter Ham, the head of U.S. Africa Command, said in an interview with The Wall Street Journal in December that an authorization to address new threats in North Africa was a “worthy discussion.” But what form that would take is unclear. The Pentagon and White House did not comment to ProPublica on the possibility of a new AUMF.

Presidents have used force without Congressional authorization by invoking presidential powers under Article II of the Constitution.

Obama ordered airstrikes over Libya in the spring of 2011 citing international cooperation and “national interest” as justification. (Several lawmakers subsequently sued the administration for bypassing them, but the case was dismissed.) He has also claimed authority to launch pre-emptive cyberattacks, the New York Times reported this weekend. President Bill Clinton cited the nation’s right to self-defense when he bombed Afghanistan and Sudan in 1998 in retaliation for the bombing of U.S. embassies in East Africa.

Obama officials regularly cite self-defense alongside the AUMF in justifying targeted killing. White House counterterror adviser John Brennan has said that the U.S. uses “a flexible understanding of ‘imminence’ ” in determining what constitutes a threat. The Justice Department memo on targeting U.S. citizens also references a “broader concept of imminence,” which it holds “does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.”

Shamsi and other critics of the drone war have noted that some strikes in Yemen in particular appear to target insurgents acting against local government. The U.S. almost never acknowledges particular strikes or details the specific threat posed by an individual.

Johnson, the former Pentagon counsel, told The Wall Street Journal that “the president always has the constitutional authority to protect the nation and important national interests by responding to individual terrorist threats, militarily or otherwise.”

Johnson noted that, for a “sustained armed conflict, the preference should be Congressional authorization.” 


19 Responses

  1. Given that the drone campaign is conducted by people who try to redefine common words and who lie about who they’re targeting, there should neither a new nor an old AUMF.

  2. “The U.S. has provided refueling and cargo planes to assist the French intervention in Mali. That is lawful because France is acting “in response to a request for assistance from the Malian government,” Tommy Vietor, a spokesman for the National Security Council, told ProPublica.”

    Dioncounda Traoré is “president” of Mali as a result of a coup d’état against the elected president, Amadou Toumani Touré. It doesn’t much advance the “rule of law” and “good governance” in Africa when the west showers legitimacy on undemocratically chosen leaders.

    • You can say the samething about Chile, Venezuela, and Honduras.

      The Cold Warriors at the Department of State and CIA loved those right-wing military juntas.

      Costa Rica has no army and has had no revolutions.

  3. Ms. Currier has written a well-balanced piece, laying out both the US Government’s case for the legality of the drone program (the AUMF), as well as the possibility that in the future the AUMF may no longer apply. As things stand now, however, and certainly in the near to intermediate future, the AUMF will continue to be valid, as Al-Qaeda and its affiliated organizations and forces (AQAP, AQIM, etc.) will remain active threats to the United States and US interests. The targeting of senior, operational commanders and operatives will continue to be legal, both under the AUMF and Article 51 of the UN Charter.

    One interlocutor in Ms. Currier’s piece stated that the AUMF may be undermined when active conflict in Afghanistan ends. I do not think the end of active conflict in Afghanistan will have any effect on the legality of the AUMF. The AUMF does not limit the US military response to any particular geographic region, and it specifically grants the US the right to target “organizations.”

    • A question is where does the CIA draw the line as to who is covered under the AUMF?

      The terror leader Zarkawi in Iraq was independent until he announced his allegiance to Al-Qaeda; he was killed by the U.S. in an air strike and his successor was also killed. The group is now known as “Al-Qaeda in Iraq” and has been closely linked to the extremist Jabhat al-Nusra group operating against Baathist forces in Syria.

      It would be a stretch to connect Jabhat al-Nusra with 9/11 despite the fact their fighters do profess an allegiance to Al-Qaeda. Jabhat al-Nusra claims to only want Assad out of office at this time and has no operations against the U.S., but under the current logic advanced by the Obama administration, this group could arguably face drone attacks.

      • Good point. Just like we rebuffed Iran after it allowed supplies for Iraq to go through it’s air space. Or Bremer rejecting the Baathist general who promised to deliver over 300,000 Iraq soldiers if the US kept them intact and paid their wages.

      • “It would be a stretch to connect Jabhat al-Nusra with 9/11 despite the fact their fighters do profess an allegiance to Al-Qaeda. Jabhat al-Nusra claims to only want Assad out of office at this time and has no operations against the U.S., but under the current logic advanced by the Obama administration, this group could arguably face drone attacks.”

        Good point. Nevertheless, my guess would be they will not face drone attacks as long as their activities are restricted to ousting Assad from power. Should Jabhat al-Nusra mount operations against the United States, US facilities, or US interests, however, I think they would certainly be fair game for US counter-terrorism operations, including drone attacks.

  4. The speech by Jeh Johnson is really excellent.

    I do believe that on the present course, there will come a tipping point – a tipping point at which so many of the leaders and operatives of al Qaeda and its affiliates have been killed or captured, and the group is no longer able to attempt or launch a strategic attack against the United States, such that al Qaeda as we know it, the organization that our Congress authorized the military to pursue in 2001, has been effectively destroyed.

    This is very similar to something Leon Panetta said when he became Secretary of Defense, which was echoed by David Patraeus:

    The United States is “within reach” of defeating al-Qaeda and is targeting 10 to 20 leaders who are key to the terrorist network’s survival, Defense Secretary Leon Panetta said on Saturday during his first trip to Afghanistan since taking charge at the Pentagon….“Now is the moment, following what happened with bin Laden, to put maximum pressure on them, because I do believe that if we continue this effort that we can really cripple al-Qaeda as a threat to this country,” he told reporters on his plane en route to Afghanistan. “I’m convinced,” he added, “that we’re within reach of strategically defeating al-Qaeda.”

    link to articles.washingtonpost.com

    Johnson and Panetta are laying down the same marker: the war against al Qaeda will end, our efforts transition from armed conflict to law enforcement, when al Qaeda is defeated to the point where they cease to be capable of being a strategic threat to this country, and revert to be an ordinary terrorist organization. This fits in with the observation about the end of “core al Qaeda,” in that it is the global scale of the organization that elevates its capabilities and reach beyond the level of run-of-the-mill terror groups like the Red Brigades or the PFLP.

    • The problem is we’ve been told many times that Al Queda has been defeated or is on the verge of defeat. But it – or its copy cats – reappear again and again. Are any of these ‘affiliates’ and off-shoots really able to project their ‘power’ against he US? Every single botched job since 9/11 says no. (shoe bomber, Liberty City ‘bombers’, Times square bomber). Could Yemeni, Somali or Mali jihadists really sustain an attack as sophisticated as Al Queda did in its prime? It doesn’t seem so.

      In determining strategy, it is just as wrong to over-estimate your enemy as to under-estimate it. There is a good deal of evidence that the US is, once again, overestimating the reach of jihadists and that it actions – drone attacks, special ops – are doing more to build them up than defeat them. Just like,in 2003, the US grossly over-estimated a third rate dictator, already restricted under UN sanctions, scrutinized by global intelligence agencies and possibly already driven to madness. That wrong assessment caused tens of thousands of live to be lost, Iran to flex its muscles and violent regional sectarianism.

      • Al Qaeda has clearly been degraded significantly. It is a shell of what it was on 9/11.

        I think we’re going to see Obama wrap this up in his second term, perhaps coterminous with the Afghan War.

        • You think he’ll declare an official end to the War on Terrorism? Then actions in Mali, Yemen or anywhere else become completely black ops, by definition secret.

        • I think there is a better than 50/50 change he will. I also think there will be a big political fight with Congress if he does. What happens when the President says we’ve won the war, and Congress wants to keep fighting?

          The actions in Mali aren’t being carried out under the AUMF, but at the invitation of the Malian government.

          If any counter-terror military actions (as opposed to law enforcement actions) take place in Yemen, Pakistan, or Somalia after the war is ended, they would have to be done at the behest of the local governments, too.

  5. Shamsi argues that the Obama administration is already relying on an overbroad interpretation of the AUMF to justify strikes against alleged militants in Yemen or Somalia without demonstrating precisely how they are associated with al-Qaida or engaged in anti-U.S. hostilities.

    That’s a rather implausible argument. The conspiracy to bomb a jetliner over Detroit (the Underwear Bomber plot) originated in Yemen and was conducted al Qaeda in the Arabian Penninsula. The bomber testified that Anwar al-Awlaki was an operational commander of the group, and helped to organize the attack. Later, Awlaki was killed when a drone strike blew up the car he war riding in. Also riding in the car was Samir Khan, who was part of the core al Qaeda organization in Pakistan. Given that set of facts, it’s pretty implausible to claim that AQAP does not represent a threat to the United States, or that it is not associated with the bin Laden/Zawahiri “core al Qaeda” group.

  6. What is clear here is that, like the Vietnam War, there are massive grey areas that need to be presented to the federal judiciary to adjudicate their legality.

    Justice William O. Douglas once stated that the legality of the Indochina Conflict was something the Supreme Court needed to review, but it was never done. Only U.S. Congress with its oversight capabilities and authority to enact the War Powers Act in 1973 placed important checks on the powers of the Chief Executive. Same is occurring here.

    The Church Committee, empanelled following the publishing of the CIA and the Cult of Intelligence by Victor Marchetti and John Marks and also the involvement of CIA personnel in the Watergate scandal, exposed many of the abuses of U.S. intelligence agencies and strengthened government oversight by Congress. Congressional oversight is beginning to occur slowly to address some of the more egregious practices of our government in conducting the drone program.

    U.S. District Judge John Bates, a former army officer serving in the Vietnam War, applied the “political question” doctrine and standing defenses to dismiss an action to remove U.S. citizen from the “kill list”. That individual has been killed since that time and more litigation has followed.

    One of my key beefs with the drone program are the huge numbers of innocent bystanders that are killed, especially children. In Israel, international outrage over their extrajudicial killing program limited some of the more blatant acts. I recall some Defense Department officials expresing grave reservations about the CIA’s drone program in Afghanistan.

    The most dangerous aspect I see about the broad scope of AUMF interpretaion is that it could conceivably be interpreted to allow the U.S. intelligence community to point the finger at anyone in the world on flimsy proof supplied by persons with dubious motives and have a bureaucrat within the CIA “sign off” on some sort sort of administrative death warrant – it already has happened in Somalia.

    The ACLU and other public service organizations should be lauded for their work in attempting to obtain needed judicial review of highly questionable practices by the U.S. intelligence community.

    • There have been a couple orders of magnitude fewer civilians killed in the war against al Qaeda (the “drone program”) than in the iraq War, the Afghan War, the Vietnam War, the Korean War, or the first Gulf War.

      To single out civilian casualties as something that makes “the drone war” uniquely bad or legally shaky is strange.

  7. “What is clear here is that, like the Vietnam War, there are massive grey areas that need to be presented to the federal judiciary to adjudicate their legality.”

    Here is where I think you miss the mark, Mark (no pun intended). Once we are committed to introducing US forces (be they “boots on the ground,” special ops night raids, or lethal drone attacks) against forces that have attacked us and continue to plan and execute attacks against the US, the President, as Commander in Chief, has the authority to respond. That is written into the Constitution under Article II, Section 2. The courts have traditionally, and with good reason, not inserted themselves into questions of national defense and military decisions.

    • That said, the unique challenges in identifying the enemy in this war are a real concern. The answer is for Congress to apply vigorous oversight, using both its power of the purse and its war-declaring authority to demand cooperation from the executive.

      This isn’t to say that the legislature should take on the role of reviewing individual targets, but they should be reviewing how the executive is going about its business.

  8. “Shamsi and other critics of the drone war have noted that some strikes in Yemen in paticular appear to target insurgents acting against loacal government”
    This sentence in the 3rd to last paragraph has a link to an article in which Micah Zenko, who has studied the drone program, states that we are not targeting senior Al Queda commanders.
    We are killing people who want to establish Sharia law where they live, or who have some other problem with their local government.
    Within that linked-to article, is a link to a piece by Peter Bergen of the New America foundation. In that article, it says that the signature strikes, which have become the hallmark of the Obama drone war, have decimated the ranks of LOW-LEVEL combatants.
    So, let’s put to rest the idea that we are targeting senior al Queda leaders.

    • Most of the drone strikes have been carried out as close air support or tactical bombing in support of the conventional ground war in Afghanistan. Those strikes aren’t intended to go after senior al Qaeda leaders, but like any other air support in a war, to strike the enemy fighting the war. Those are the vasty majority of the “signature strikes” that have been conducted, and they don’t really have anything to do with the “disposition matrix” or the doctrine put forward in the recently-leaded white paper.

      It’s a mistake to conflate air strikes in the Af-Pak War with those in the war against al Qaeda, merely because the same equipment is used. We can, indeed, talk about targeting senior al Qaeda commanders, because there actually is a program to target them being conducted – in addition to the strikes, whether from drones, piloted jets, or helicopters, that target ground forces in (or entering) Afghanistan.

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