Targeting Al-Shabaab’s Godane is not the same as targeting Al-Shabaab

On Monday, the US military conducted an airstrike in Somalia, in which the primary target was reportedly Ahmed Abdi Godane, the leader of the militant group Al-Shabaab. Based on media reports, one might conclude that the strike was part of U.S. military operations against Al-Shabaab as an “associated force” of Al Qaeda (and it appears many media outlets may be working with this assumption). That conclusion, however, would not be an accurate assessment of the public record.

As discussed previously at Just Security–including a post by Jennifer Daskal and Steve Vladeck (in Sept 2013), a post by me (in January 2014), and a post by Marty Lederman (in June 2014)–the administration has never publicly claimed that Al-Shabaab is an associated force of Al Qaeda (e.g., under the 2001 Authorization for Use of Military Force). On the contrary, the administration has claimed to target suspected militants like Godane due to the individual’s dual membership in Al-Qaeda and Al-Shabaab (the former membership doing all the work for authorization-of-force and targeting purposes).

As Marty recently wrote, according to the Defense Department’s General Counsel Stephen Preston, “the U.S. has used force against certain al-Shabaab militants in Somalia not because it has deemed al-Shabaab an ‘associated force,’ but instead because those ‘limited number of targets’ have ‘been determined to be part of al-Qa’ida’ itself.”

Here is the key passage in Preston’s testimony before Congress in May 2014 (emphasis in original):

“[T]he U.S. military has also conducted capture or lethal operations under the AUMF outside of Afghanistan against individuals who are part of al-Qa’ida and targeted as such. For example, in Somalia, the U.S. military has conducted direct action against a limited number of targets who, based on information about their current and historical activities, have been determined to be part of al-Qa’ida. (Some of these individuals are also part of al-Shabaab, a group that is openly affiliated with al-Qa’ida.)”

And here is what I wrote about a prior incident (in January 2014) when the media reported that the United States had targeted Godane:

“What domestic legal authority did President Obama invoke to send a team of Navy SEALs into Somalia this weekend to capture or kill a member of al-Shabaab, the terrorist organization based in that country and allegedly responsible for the recent Westgate Mall attack in Kenya?

A key question is whether the government’s legal theory is a broad one—that al-Shabaab as such is one of the ‘associated forces’ of al-Qaeda and thus all members are targetable—or a narrow one—that only ‘two-hatted’ individuals who are members of both al-Shabaab and al-Qaeda are targetable?

…[T]he question is whether the US officials are invoking a broad theory of AUMF authority (al-Shabaab as a group is subject to the use of force) or a narrow theory (only those individuals who are also members of al-Qaeda are lawful targets).

Before this weekend, most indications had been that the narrower theory has been the basis for US attacks on specific members of al-Shabaab. If it turns out to be the broader model, a major new front in the post-9/11 US war footing has opened—and the administration has not informed the American public.

A hint that it might, indeed, be the broader of the two theories is based on one of the few official statements by the DOD over the weekend. The Pentagon Press Secretary confirmed that the US military operation was aimed at ‘a known al-Shabaab terrorist’ (see also here). It is notable that this statement does not identify the target as a member of al-Qaeda.

The key, however, may turn on the identity and organizational affiliations of the specific target of the U.S. operation. So, who exactly was the target?

At first, media reports over the weekend suggested that the target was a leader of al-Shabaab, Mukhtar Abu Zubeyr, alias Muktar Abdirahman ‘Godane,’ which would not necessarily unsettle the narrower model. According to Daniel Klaidman’s terrific book, Kill or Capture, the administration already determined (in the fall of 2010) that Godane was targetable under the two-hatted theory following his sworn oath of allegiance to al-Qaeda and intelligence reports indicating he wanted to attack the West (pp. 221-22). Indeed, another al-Shabaab leader may have been spared at the time because he had not taken the same actions.

That said, more recent news stories (herehere, and here), primarily relying on statements by U.S. government officials, report that the target was not Godane after all. …”

As I noted back in January, if the United States targeted Godane on a theory that Al-Shabaab is an associated force of Al Qaeda, “a major new front in the post-9/11 US war footing has opened—and the administration has not informed the American public.” There is no indication that we are there (yet). 

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.