Are AQAP Domestic Insurgents in Yemen Covered by the AUMF?

According to Dan Klaidman’s excellent book, President Obama and John Brennan drew a red line in 2011: The United States would target members of Al Qaeda in the Arabian Peninsula (AQAP) as an associated force of Al Qaeda who threaten the United States, but we would not get into the business of directly fighting AQAP rebels threatening the Yemeni government as part of that country’s domestic insurgency. According to Klaidman:

“[Brennan] and Obama were in agreement on kinetic activity: they both believed their surgical approach was working and that the United States should remain ‘AQ-focused.’ How would it look if we started killing large numbers of antigovernment insurgents in Yemen— especially ones who were not clear threats to the United States?”

Consistent with this line, in May 2012 NSC spokesperson Tommy Vietor stated: “We’re pursuing a focused counter-terrorism campaign in Yemen designed to prevent and deter terrorist plots that directly threaten US interests at home and abroad … We have not, and will not, get involved in a broader counter-insurgency effort.”

Klaidman published his book in June 2012, and events since then suggest the administration may have taken a different course. The question is whether that course is authorized by the AUMF.

In October 2013, I wrote that the United States appears to have become involved as a co-belligerent alongside the Yemeni government fighting AQAP’s domestic insurgency. I was not alone in that estimation. Bobby Chesney over at Lawfare had already written: “Simply put, there is and for some time has been a non-international armed conflict underway in Yemen pitting AQAP against the government of Yemen, and the United States is a party to this conflict as well.” That assessment has been strengthened even more so by recent events – including reports of the United States’ “extensive assistance beyond drone strikes during a massive anti-terror operation in Yemen, including flying Yemeni commandos to a site where they killed scores of suspected al Qaeda members” (see also item 4 in this post).

The question is whether targeting AQAP members who are not “externally focused” but who instead threaten local Yemen institutions is authorized by the AUMF.

On the same page that Klaidman discusses the red line drawn by President Obama and John Brennan, he explains why a proposal by General James Mattis to kill a large number of AQAP fighters was rejected in June 2011:

“But there was a problem with the plan: while a small number of the targets were senior members of AQAP already approved for ‘direct action,’ most of them came from a wing of the organization that was not “externally focused,” not interested in attacking the United States, and therefore, according to some, not targetable. AQAP was a terrorist group but it was also an insurgency with tribal elements, largely preoccupied with a local agenda rather than attacking Western or American interests.”

At a meeting the following day, the list of targets was accordingly narrowed:

“On the morning of Saturday, June 11, Brennan chaired the emergency deputies meeting to go over the proposed AQAP strike. Four of the original eleven targets had been removed from the list for legal reasons, yet the State Department still had reservations about some of the remaining targets. The main objection continued to be what Obama had so often expressed to Brennan and Cartwright in their Oval Office sessions: This set of targets, as Brennan put it, was a ‘slippery slope’ to counterinsurgency. … The deputies carved the list back further.”

One reason to draw that line is that the AUMF authorizes force only “to prevent any future acts of international terrorism against the United States.”

Four reasons could explain the discrepancy between the reported decisions made in mid-2011 and US operations since mid-2012:

1.  New information available to the administration shows it is important to defeat or degrade the local Yemen insurgency to prevent AQAP’s threat to the United States.

2. Not new information, but rather changes in AQAP’s composition or operations erode the distinction between a locally directed insurgency and an externally directed threat to the United States.

3. The administration has slid into combat operations against members of the AQAP insurgency due to pressures (e.g., from the US military) to expand the target list and/or pressures to assist the Yemeni government more forcefully.

4. Klaidman’s account of the decision-making in 2011 got it wrong.

My bet? It isn’t #4. 

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About the Author(s)

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016). You can follow him on Twitter @rgoodlaw.