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Wednesday, January 30, 2013

Does the AUMF cover North Africa?

The new horizon for the armed conflict with al-Qaeda is clearly North Africa.  With recent terrorist attacks in Libya and military offenses by islamist rebels in Mali, it's clear that al-Qaeda has build up a substantial operational capacity in that region.  Much of that capacity exists under the umbrella of the so-called AQIM, Al-Qaeda in the Islamic Maghreb.  Some of that operational capacity might also represent co-sympathetic organizations willing to fight alongside or in tandem with AQIM.

At the moment, the Obama administration is being cautious about committing itself to a particular military posture against this threat.  Although the administration is politically committed to stopping Islamist threats in Libya (after the attack on the Benghazi compound), the Administration is more sanguine about committing military forces in Mali.  For the moment, the French are taking the lead in that fight.

However, if this really represents the future of the al-Qaeda threat, then it is unclear if the administration (or future administrations) will be willing to sit on the sidelines forever.  And if they decide to enter into the fight, there will be some thorny legal dilemmas to resolve. In particular, is the AUMF (Authorization to Use Military Force) passed by Congress after 9/11 sufficient legal authorization for the President to commit troops in North Africa?  If the AUMF does not cover military operations against al-Qaeda threats in North Africa, then the President would presumably be limited by the War Powers Resolution to a 60-day military intervention.

Does the AUMF contemplate a North African intervention?  On the one hand, the AUMF authorizes the President to defend the country against al-Qaeda, Taliban, co-belligerent and associated forces.  In this sense there is a credible argument that at least some of the threats in North Africa, insofar as they operate under the al-Qaeda umbrella, are associated forces.  At least part of the argument would be linguistic -- they are all al-Qaeda.

On the other side of the argument, the AUMF was arguably intended to authorize the President to stop the terrorists responsible for the 9/11 attacks.  But much of the North African branch of al-Qaeda, and associated forces, only came into being after the 9/11 attacks.  And the strength of the North African Islamist movement really increased after al-Qaeda "core" was substantially degraded in Afghanistan and Pakistan by the US drone campaign carried out by the CIA and JSOC.

From my perspective, the result hinges on a deeply philosophical question.  Did the AUMF authorize the President to use all available force against a set of individuals responsible for the 9/11 attacks, or did the AUMF authorize the use of force against organizations responsible for the 9/11 attacks?  Although most of the former are either dead or in custody, then latter persists -- albeit in a transfigured form.  Al-Qaeda has moved from an organization operating mostly in Pakistan and Afghanistan to an organization operating in Yemen and, in the future, possibly various locations in North Africa.  If the AUMF targets groups, the question is whether the group al-Qaeda persists despite these changes.

At this level of analysis, the question becomes one of group identity, the necessary and sufficient conditions for a group's continued existence over time.  Is a shared name, ideology and propaganda sufficient?  Or is direct operation continuity required?  The former definitely obtains as to the different branches of al-Qaeda, but the latter might not be the case.  And is this to be evaluated from an objective or subjective point of view?  How much weight do we place on how the members of the North African Islamist movement themselves view their relationship with al-Qaeda?

In other words, the result of the legal problem rests on a solid definition of "al-Qaeda".  What exactly is it?

2 comments:

Consul-At-Arms said...

It's not a bad question you've asked; let me ask one back at you:

Would the U.S.'s state of war against Nazi Germany have excluded waging war against additional bodies, formations, or organizations of combatants which it formed, or which formed in alliance to Nazi Germany, subsequent to Dec. 7, 1941?

Jens David Ohlin said...

Presumably, war against the other states would be permitted under the law of neutrality, specifically the rule that other states that refuse to declare their neutrality can be deemed "co-belligerents" and can be attacked as the enemy. The question here is whether the law of neutrality can be transferred to non-state actors, like sympathetic terrorist organizations, that might be deemed co-belligerents of al-Qaeda. This is an expansion of the previous doctrine -- is it possible for a terrorist organization to refuse to declare their neutrality?