The Obama administration is reportedly taking another look at the legal foundations of its use of drones for lethal counterterrorism operations. And none too soon, with the changes in the structure of al-Qaeda stretching the AUMF to the breaking point.
Like the war in Afghanistan, the targeted killing campaign in Pakistan, Yemen and elsewhere was undertaken under legal auspices of the Authorization for the Use of Military Force, passed by Congress in the wake of the 9/11 attacks. That law allowed the administration “to use all necessary and appropriate force” against those who “planned, authorized, committed, or aided” the 9/11 attacks or who “harbored such organizations or persons”.
However, with the continuing tactical successes of the dogged and technologically sophisticated campaign to target the core al-Qaeda leadership in Pakistan over the last several years, the terrorist network has become much more diffuse. This makes finding the necessary connections to the al- Qaeda senior leadership much more difficult, thereby undermining the legal justification for using lethal force. In fact, even detaining these individuals would require that they fall under the AUMF or some other legal authority (something critics of targeted killing often overlook).
This diffusion of al-Qaeda—and the legal authorities for use of force—is not a particularly new phenomenon. After all, after the invasion of Afghanistan, and the routing of the Taliban and al-Qaeda, many al-Qaeda operatives left the Afghanistan/Pakistan theater altogether, dispersing across the globe. They were not going into hiding, per se, but looking for new places to recruit, plan, and carry out their terrorist operations. When the US subsequently invaded Iraq, some al-Qaeda operatives followed us there to take root in the security void we created.
The courts have taken an expansive view of the AUMF, allowing the administration to target these “associated forces,” or what many analysts have called al-Qaeda 2.0. However, these individuals and groups had clear, direct connections to the original, core al-Qaeda element run by Osama Bin Laden and Ayman al-Zawahiri which planned and carried out the 9/11 attacks.
Most al-Qaeda 2.0 groups were founded and run by his lieutenants, and remained in contact with Bin Laden. This is not true of the newest crop of terrorist groups cropping up across the Middle East and Africa. Instead, the leadership of these new groups often learned their trade as lieutenants to al-Qaeda 2.0 leaders and have only the most tenuous connections to the core al-Qaeda group. This makes fitting them into the AUMF scheme difficult, creating questionable legal authority to use lethal force.
According to a senior Obama administration official,
“The farther we get away from 9/11 and what this legislation was initially focused upon, we can see from both a theoretical but also a practical standpoint that groups that have arisen or morphed become more difficult to fit in.”
Even the leaders with the firmest connections often pose legal problems: Mokhtar Belmokhtar, a former fighter in Afghanistan and later leader of al-Qaeda in the Islamic Maghreb (AQIM), had broken ties with AQIM and formed his own group, the al-Mulathameen Brigade operating in Algeria and Mali. The threat he poses to the to the US is not diminished, however. He was the mastermind of the Algerian gas plant attack, which lead to the deaths of three US citizens. However, because he is no longer a part of al-Qaeda or one of its franchises, the administration determined that the AUMF would apply to him.
When those like Belmokhtar and the Benghazi attackers kill Americans, the US could capture them based on criminal law enforcement authorities. However, should we have to wait for US citizens to be victimized before we allow the government to take action, when we know that an individual or group has nefarious intentions? Should we also have to wait until they show up somewhere that we can execute an arrest without undue danger to our agents?
The Obama administration is now looking for ways to square this circle, and create a more permanent framework for dealing with these issues. However, they apparently do not like their options. Simply expanding the current AUMF is unappealing. “You can’t end the war if you keep adding people to the enemy who are not actually part of the original enemy,” according to one person who participated in the administration’s internal debates. But relying solely on the constitutional authority of the President are not appealing either.
And while the administration may be correct that there is little political appetite for it, what is needed is a new authorization, allowing the executive broader authorities to kill or capture terrorists that target US interests, not just those connected to specific prior attacks. But these authorities must be coupled with judicial and congressional oversight procedures to protect against abuse or overuse. In fact, failure to create these authorities with built-in checks will encourage future presidents to rely on their inherent authority to act to defend the country from foreign threats, thus seizing all of the power with none of the constraints.
A more comprehensive “Counterterrorism Operations Powers Act” would create checks on the President’s powers, while still giving him the ability to carry out his duty to protect the nation. It would also help to elucidate the line between law enforcement situations and national security/counterterrorism situations.
Paul Taylor, Senior Research Fellow
Center for Policy & Research