The administration’s position that ISIL is a successor of al-Qaeda deserves serious consideration. We do so in this post, and show some serious flaws in this position. What hangs in the balance? Whether Congress authorized the President to use force against ISIL in the September 2001 AUMF for Al Qaeda.

To be clear, we do not seek to make an argument about whether or not the President, as a matter of policy, should attack ISIL. On our view, there are many reasons why the United States should take the fight to ISIL.  But we have a hard time seeing how the 2001 Congress authorized this fight, and we believe the best course of action is for the current Congress to pass an AUMF that specifically covers ISIL.

Because the more general question of whether old statutory authority provides for the use of force against new enemies is a question that is likely to recur in the United States’ battle against terrorism, we thought it would also be useful to lay out some concrete dimensions that might help answer this question going forward.  These dimensions include the organizational structure of the new enemy, the organization’s goals, and the amount of time that has passed from the original authorization.  In this post, we take on the first dimension—organizational structure.

So, what exactly is the administration’s interpretation of the 2001 AUMF as it applies to ISIL? As Marty Lederman, writing for Just Security, and Steve Vladeck, writing for Lawfare, have explained, the administration’s position is not that ISIL is an “associated force” of AQ, but instead that ISIL is al-Qaeda itself; ISIL is one of two splinter groups or a “successor.” In a robust defense of the administration’s position, Cass Sunstein wrote:

“Imagine that in 2012, al-Qaeda split into two organizations: the original one and a new, more brutal group with a new name. Under the AUMF, the president would plainly have the authority to use force against both.”

Sunstein’s proposition—as he phrases it—seems right. Indeed, to illustrate the strength of that position, imagine if southern Japan politically broke away from the mainland during World War II but continued to engage in hostilities against the United States and allied forces. A strong argument could be made that Congress’s declaration of war against Japan would enable the President to continue to use force against both north and south Japan—and a heavy burden would rest on anyone who suggested otherwise.

Indeed, we accept that implicit in Congress’s authorization to attack AQ was an authorization for the President to attack not just the group’s leadership, but its component parts as well–including potentially parts that partitioned off but continued to wage hostilities against the United States.

But is that the reality of AQ and ISIL? The public record suggests otherwise.

First, unlike the Japan hypothetical, ISIL did not even exist on 9/11. Thus Congress’ initial authorization, which provided for the use of force against “organizations” that “planned, authorized, committed, or aided” the 9/11 attacks, did not apply to them. ISIL therefore presents a more difficult case than a standard successor model assumes.

Second, ISIL and AQ may have never been “unified.” It appears that ISIL’s predecessor, al-Qaeda in Iraq (AQI), was at best an associated force of AQ-Central, not part of a unified organization. Hence, it is an added stretch to claim ISIL is a successor or a derivative. It seems more like an allied group that subsequently dis-associated. Rather than imagining our example of a breakaway southern Japan, imagine a third state, at one point, becoming allied with Japan, but then cutting off those ties.  Would the original declaration of war against Japan permit the President to attack that state? That would be a much harder case, and doesn’t fit neatly into the administration’s successor model.

In defense of the successor model, Sunstein writes that ISIL “has reportedly been subject to al-Qaeda’s direction and control” (emphasis added). But, what reports?  Marshall Erwin, an analyst who worked on these issues at the CIA’s Counterterrorism Center at the time, had a sharply differing account in a post on the Just Security blog:

“[W]hen Zarqawi merged his organization with al-Qaeda in late 2004 … at that point the focus shifted to questions regarding whether AQI was truly al-Qaeda. Zarqawi’s group was a new model of an al-Qaeda ‘node’ that had not been seen before and that challenged notions of what it meant to be al-Qaeda-affiliated. As compared to previous al-Qaeda “networks,” such as the one that existed in the Arabian Peninsula in 2003, AQI was always relatively independent of al-Qaeda central leadership. The shift in terminology (from network to node and/or affiliate) reflected the reality that bin Laden and Zawahiri exercised virtually no command and control and were limited to providing strategic guidance to Zarqawi and his successors. This guidance was often ignored.” (emphasis added).

According to Erwin’s analysis then, “AQI was always relatively independent of al-Qaeda central leadership;” “bin Laden and Zawahiri exercised virtually no command and control,” and AQI was even less connected to AQ than other “associated forces” such as al-Qaeda in the Arabian Peninsula.

Indeed, as early as 2005, Zarqawi had “largely ignored al-Zawahiri’s advice” by engaging in sectarian violence against Shiites rather than focusing solely on the expulsion of the US from Iraq. Moreover, when AQI established/transformed into the Islamic State of Iraq (ISI) it did so “without the buy-in from al-Qaeda leadership.

Indeed, analysts report that Zarqawi and Al-Baghdadi routinely defied the guidance of AQ’s central senior leadership—a practice that amounted to a “disrespect and even outright subversion of al Qaeda’s authority” such that their separation in early 2014 “wasn’t particularly surprising.” Another analyst put it more strongly: “The level of direct coordination between Al Qaeda’s leadership in Pakistan and the group that originally was known as Al Qaeda in Iraq has always been limited – and has appeared pretty much dead since 2006.”

Third, how should we evaluate groups that quit AQ? As Sunstein argues in his defense of the successor model, the AUMF surely applies to groups and individuals who joined Al Qaeda after 9/11. But what about individuals and organizations that left Al Qaeda? Sunstein doesn’t discuss the “back end” phenomenon. Yet surely he doesn’t believe the use of force applies to ex-AQ members indefinitely.  And we know that ISIL unquestionably and completely split from AQ in February 2014.

Things might be different if such organizational changes were superficial—a mere attempt to shield the group from American attack.  But, that’s a red herring in the case of ISIL and AQ. In congressional testimony, US Secretary of State John Kerry  argued that “a mere publicity stunt to separate yourself and call yourself something else does not get you out from under the force of the United States law.”  That seems right when a group’s change of name and disassociation are superficial. Surely, however, the administration is generally able to detect meaningful changes in these types of cases. (If we don’t have that capacity, on what kind of intelligence are we basing the decision to use force in the first place?) No one seems to think that the ISIL and AQ split is a “mere publicity stunt.” In February, The Washington Post reported that “officials, noting long-standing frictions between al-Qaeda leader Ayman al-Zawahiri and ISIS’s upper ranks, said there is no doubt the [expulsion of ISIS from AQ] was real and not a ruse.” Indeed, after the long period of rupture, the two groups did not simply separate. Fighters from ISIL and AQ’s affiliate in Syria began months of slaughtering each other.

Finally, what about ISIL’s former name, “Al Qaeda in Iraq”? We ourselves do not necessarily attach significance to such names, but Sunstein seems to. He makes a point that ISIL “has often been described as ‘al-Qaeda in Iraq.’” The passive tense is curious. Who exactly assigned that name or described the group in those terms? Our understanding is that it was the George W. Bush administration, during its efforts to associate Zarqawi’s group with AQ central in the public’s mind. Zarqawi had long called his group Tanzim Qaidat al-Jihad fi Bilad al-Rafidayn (QJBR). It was the US-led multinational force that decided in 2005 to apply the label “al-Qaeda in Iraq.” A senior US intelligence officer explains: “For several months, Zarqawi’s organization was referred to as QJBR, but in the summer of 2005, the MNF-I began referring to QJBR and TWJ as al-Qaeda in Iraq (AQI). That name has stuck.” In a chapter entitled, “Characterizing the Irregular Adversary in Iraq,” Jeffrey Michaels’ book refers to the MNF’s assigning the name to the group as an example of “many of the terms employed in the official discourse [which] were used for their perceived positive political effect rather than their accuracy.” That decision appears to have been controversial within the US intelligence community, according to Marshall Erwin, who also believes the name was chosen ultimately to shape American public opinion of the threat.

In sum, the available public record contradicts more than it supports the successor model.  The 2001 AUMF authorized the use of force against the perpetrators of 9/11, but ISIL did not exist on 9/11, it was never unified with AQC—the organization that did perpetrate 9/11—and it has now severed ties altogether with that group.  Proponents of the successor model therefore need to have a much more convincing account that grapples with these discrepancies. This analysis, however, is incomplete without an evaluation of ISIL’s organizational goals—a topic we will discuss in Part II of this series.

Despite the above analysis, some readers might believe that the key issue is whether ISIL continued to engage in hostilities against the United States (the topic of our next post). Marty Lederman flagged this issue in an earlier post. While important, that issue can’t on its own be dispositive. Let’s put it this way: If a group that had nothing to do with AQ had the same goals as AQ, that wouldn’t mean the President had authority to attack them based on the 2001 AUMF. The organizational relationship to AQ matters.

* * *

We close with an important caveat about the factual record.  We acknowledge that whether the 2001 AUMF authorized the use of force against ISIL depends a great deal on the account of where ISIL came from (and what its goals are).  If Sunstein is right and the perpetrators of 9/11 split into several groups and ISIL is merely one of those groups, then the Administration would be on much stronger legal footing.  If, on the other hand, as we have suggested above, ISIL did not exist prior to 9/11, derived from a mere (and highly autonomous) associate of AQC, and has now unequivocally cut off any connection with that group, then the Administration’s legal argument is much weaker. Our account has relied on the limited public record.  Of course, if we are wrong about the facts, our legal analysis may change. What is hard about making a decisive assessment either way is that the party probably best able to assess these facts is the Administration and it has yet to make either its legal argument or its factual premises public.   This is nothing new.  But, given the general public doubts about this legal rationale, we think it would behoove the Administration to make its legal justification—and significant factual predicates—public.  The Administration may have great responses to these arguments.  It would be important to hear them.

[Editor’s Note: Goodman and Roisman’s second post in this two-part series — “Assessing the Claim that ISIL is a Successor to Al Qaeda—Part 2 (Organizational Goals)” — was published on Oct. 6, 2014]