The key question we are asking in this (two-part) series of posts is whether Congress’ 2001 Authorization for Use of Military Force (AUMF) applies to ISIL. More precisely, we are evaluating the administration’s theory that ISIL is one of two splinter groups, or a “successor,” of al-Qaeda for purposes of the AUMF.

In Part 1, we explained that there are three distinct analytic dimensions that help answer the general question of whether an authorization to use force against one organization authorizes attacks against a new organization: the organization’s structure—i.e., the new organization’s historic relationship with the old organization (the subject of our last post)—the goals of the organization—i.e., whether they match the same mission as the old organization—and the amount of time that has passed between the original authorization and the new fight.

In short, it makes sense that whether Congress authorized the new use of force through its old authorization would depend both on the new group’s historic relationship to the old group, and whether this now inarguably distinct new group has the same mission as its “predecessor” or former associate. With respect to the organizational goals, recall the AUMF authorizes the President to use force against the perpetrators of 9/11 “in order to prevent any future acts of international terrorism against the United States” (emphasis added).  Bracketing for the moment ISIL’s relationship to the perpetrators of 9/11, the key factual inquiry then is whether ISIL, upon separating from al-Qaeda (AQ) in early 2014, continued to plan to attack the United States.  If it did, the Administration’s argument that Congress intended to provide for the use of force against ISIL would be stronger.  If it did not, then the government’s position would be weaker or untenable.  Indeed, if ISIL neither has the organizational relationship to AQ nor seeks to pursue the same goal as AQ of attacking the United States, it is hard to see how the 2001 AUMF authorization (geared at attacking AQ and protecting the United States) can be read to authorize the fight against ISIL.

Marty Lederman’s earlier post teed up this factual question well. He wrote:

“[The administration’s 2001 AUMF] theory depends on certain critical factual propositions about ISIL and its former and current relationship to al Qaeda.  If those facts don’t pan out, then of course this AUMF interpretation might be untenable.  For example, if, at the time of its split from AQ Central, ISIL no longer harbored any designs on the United States in common with its objectives when AQI was engaged in a full-scale armed conflict with the U.S., and it only determined to strike the U.S. again much more recently, then those recent attacks might be seen as an entirely new source of threat, unrelated in any realistic fashion to the AQ threat that prompted the AUMF.”

While, as Marty suggests in the same post, we don’t have enough public information to make a definitive assessment of ISIL’s goals, the public information raises some significant doubts that ISIL’s goals meaningfully matched up with those of the organization that spawned the 2001 AUMF.

One important note before we dive into the factual inquiry.  Marty asks whether ISIL continued to harbor designs (e.g., a mission or plan) to attack the United States.  Some may argue that this sets the test too low, and that the test should be whether ISIL continued to engage in hostilities against the United States.  We take no position on that debate here.  Because we are analyzing the successor model, we accept for the sake of analysis the lower threshold (whether ISIL harbored designs to attack the US), and show how the administration has not clearly met that threshold.

So what was ISIL’s stance following its split from AQ Central in February 2014? Recall that the key question we are trying to answer is whether the President was authorized to use force against ISIL based on the organization’s threat to the United States prior to the decision to bomb them.

1. Pre-February 2014

First, it is worth reflecting briefly on ISIL’s designs against the United States prior to the split with AQ. This historical piece helps put in context ISIL’s subsequent organizational goals.

ISIL’s predecessor organization, “al-Qaeda in Iraq” (AQI), emerged in Iraq out of the response to the US-led intervention in that country. It was not an allied force of bin Laden’s AQ before the invasion nor was it the creation of a desire to share bin Laden’s effort to attack the US homeland—rather it emerged as part of an insurgency to resist the American presence in Iraq. Indeed, ISIL’s focus on such local ambitions never fit well with AQ Central’s desires to attack the “far enemy” (the United States). Dan Murphy has explained this, and others  have made similar observations about this distinction between AQ’s and ISIL’s goals including Paul Pillar, former deputy director of the CIA’s Counterterrorism Center (here) and Steven Simon, who served in the National Security Council as Senior Director for Middle and North Africa from 2011-2012 (here). Some analysts such as Doug Bandow even contend that “ISIL broke with al-Qaeda in large part because of the latter’s emphasis on the ‘far enemy,’ America.”

That said, the public record is not entirely clear on this point, and we do not want to minimize the contradictory evidence. As one of us (Ryan) wrote recently, “[i]n 2012, [Abu Bakr] al-Baghdadi [ISIL’s leader] stated his intent to attack the United States: ‘Soon you will witness them in the heart of your homeland, as our war with you has just begun, and so await them.’”   And, as late as January 2014, al-Baghdadi said: “Our last message is to the Americans. Soon we will be in direct confrontation, and the sons of Islam have prepared for such a day. So watch, for we are with you, watching.”

Yet, according to Peter Bergen, “ISIS’ predecessor, al Qaeda in Iraq, never tried to conduct an attack on the American homeland.” AQI’s attacks were generally limited to American troops and civilians in Iraq during the time of the American military intervention. Following the American troop withdrawal and prior to President Obama’s recent airstrikes, the group never killed an American.  While the public record is indeterminate, if ISIL never actually planned or tried to attack the US homeland even before its split with AQ, it would be harder to argue that the 2001 AUMF justified the use of force against them after the split.

2. February 2014-August 8, 2014

Most importantly, what were the goals of ISIL upon its separation from AQ? Or as Marty put it, a key question is whether “at the time of its split from AQ Central, ISIL no longer harbored any designs on the United States in common with its objectives when AQI was engaged in a full-scale armed conflict with the U.S.”  This matters because, if ISIL was no longer affiliated with the perpetrators of 9/11, nor had a design to attack the United States, it is hard to see where it would fit in the 2001 AUMF.

The public record, including the Administration’s statements, seems to suggest that ISIL, in fact, did not harbor designs to attack the United States prior to the US strikes against it. In January 2014, days before AQ’s official denunciation of ISIL, President Obama himself stated in reference to ISIL: “there is a distinction between the capacity and reach of a bin Laden and a network that is actively planning major terrorist plots against the homeland versus jihadists who are engaged in various local power struggles and disputes, often sectarian.”

Also, over the summer, Sir Richard Dearlove, former chief of the British Secret Intelligence Service (MI6), seemed to agree fundamentally with President Obama’s characterization of ISIL in an important policy speech.

And, in summer 2014, the administration signaled that it did not consider ISIL a specific threat to the United States when the White House stated (here and here) that the 2002 authorization to use force in Iraq was “no longer used for any U.S. government activities.” In other words, the authorization that the government had previously relied on to fight AQI/ISI was, at that time, considered obsolete.

While, again, the available public record is not definitive, it suggests that prior to the US strikes on ISIL, ISIL—unlike AQ—did not harbor any plans to attack the US homeland.

3. August 8, 2014 to present

On August 8, 2014, the United States began conducting airstrikes against ISIL in Iraq. As one of us (Ryan) previously wrote, at that point the threat from ISIL to the United States changed. The beheading of American journalists followed, and rhetorical threats by ISIL to attack the United States escalated.

But, even after these strikes, according to President Obama, the ISIL threat to the US homeland appears to remain low. In remarks to the nation about ISIL on September 10, President Obama stated, “we have not yet detected specific plotting against our homeland.”

The New York Times reported in September:

“[W]hen American counterterrorism officials review the threats to the United States each day, the terror group is not a top concern. … That is because ISIS has no ability to attack inside the United States, American and allied security officials say, and it is not clear to intelligence officials that the group even wants to” (emphasis added).

[For a similar line of analysis drawing on those sources, see Deborah Pearlstein’s post over at Opinio Juris.]

In September, the International Institute for Strategic Studies think tank issued a report stating, “Despite its spectacular acts of violence, including against Westerners, [ISIL’s] short- and medium-term objectives appear to be local and transnational rather than global.”

Consider also a series of statements by US officials.

In a speech on September 3, 2014 the director of the Counterterrorism Center, Matt Olsen said, “At this point, we have no credible information that ISIL is planning to attack the U.S.” Secretary of the Department of Homeland Security Jeh Johnson repeated that phrase almost verbatim later that month in remarks before the House Committee on Homeland Security. He stated: “At present, we have no credible information that ISIL is planning to attack the homeland of the United States.” Johnson’s assessment was echoed by deputy director of the National Counterterrorism Center, Nicholas Rasmussen who told the Senate Committee on Homeland Security and Governmental Affairs that ISIL remained a regional threat (Devlin Barrett, “Lawmakers Told Islamic State Isn’t Terror Threat on U.S. Soil,” Wall Street Journal, Sept 10, 2014).

It thus seems that, even after the strikes against ISIL, according to the Administration, ISIL does not seem to pose a threat to the United States. To the extent ISIL does now pose a threat to American interests, it appears that that threat emerged as a response to the US military engagement with ISIL, not before. As we said above, the key question is whether the President was authorized to use force against ISIL based on the organization’s threat prior to making the decision to bomb them. There are obvious bootstrapping concerns if the President can wage war against a group and claim congressional authority to have done so because the group subsequently threatens to attack the United States in retaliation. The beheading of American journalists, for example, occurred after, not before, the strikes began.  While obviously horrific, these beheadings do not go to the question of whether the strikes that predated them where authorized by Congress.

* * *

So what then is the argument for application of the 2001 AUMF to ISIL?

The principal statement by the administration references ISIL/AQI’s “long history of conducting, and continued desire to conduct, attacks against U.S. persons and interests” (our emphasis added). In his articulation of the administration’s position, Harold Koh states: “even if ISIL and AQ Core do not share all objectives, they continue to share hostility toward the US and US interests, as shown by ISIL’s brutal beheading of American citizens it had captured” (our emphasis added).

But what does “continued desire” and “continue to share hostility” mean? Those do not appear to reach a threshold of having a design or plan to conduct acts of terrorism against the United States. Surely, Anti-Americanism, itself, such as chanting or simply wanting “Death to America,” doesn’t suffice to justify using force under the 2001 AUMF.

The 2001 AUMF was geared at combating the perpetrators of 9/11 and protecting the United States from future terrorist attacks.  In order to justify the use of force with this authorization, the Administration would have to show that ISIL was connected to AQ in the way purported by the administration’s successor model—again, the subject of our last post—and that fighting ISIL would further the purpose of protecting the United States from future terrorist attacks from those groups.  If ISIL didn’t have a design or plan to attack the United States, then, under the Administration’s own argument, it is hard to see how to read the 2001 AUMF to authorize these attacks.

Again, we are not making any claims on the level of policy as to whether or not the United States should attack ISIL for humanitarian, regional stability, or any other policy reasons.  As we noted, there are, in our view, solid reasons to do so—and good reason to think that if Congress were to take up this issue, it would approve such operations.  But whether Congress has already approved these attacks in the 2001 AUMF is another question, altogether.  That question depends on ISIL’s relationship to AQ and its goals.  On both these accounts, the Administration’s argument is strained.

We close this analysis with a final thought on the temporal dimension.  Simply put, the further in time between an initial authorization and its proposed use against a new enemy, the harder it is to conclude with confidence that the original Congress intended to authorize the new use—or, more to the point, hypothetically would have intended to do so had it foreseen (unforeseeable) circumstances.  The thirteen years that have passed between the 2001 AUMF and today thus bolster our skepticism that the 2001 AUMF authorizes the use of force against ISIL.  No one seriously thinks that in 2001 Congress could have predicted the rise of ISIL in 2014, let alone that Congress thought it was authorizing strikes against ISIL in Iraq and Syria when it authorized the use of force to fight the perpetrators of 9/11.   Of course, this temporal difficulty is not unique to authorizations to use force—as Marty points out, the executive often has to interpret old authority to justify new uses.  But, we might be especially wary of using old authority to justify novel uses, when we are talking about war and the use of our military forces abroad.

The President is waging the battle against ISIL on the basis of a relatively convoluted legal rationale and on a highly contested factual basis under that rationale. It would be best to put this new war on a more solid legal and democratic footing. We think the best course of action is for the President to go to Congress, and for Congress to act.