Highlights From DOD General Council Stephen Preston’s ASIL Speech

As I write this, DOD General Counsel Stephen Preston is delivering a speech at the annual meeting of the American Society of International Law on the topic of “the Legal Framework for the United States’ Use of Military Force Since 9/11.” The full text of the speech is at the bottom of this post.

I only have a few moments just now to blog on it, but thought I’d highlight what I think are the most important aspects of the speech:

1.  Associated Forces, Redux

When he testified before Congress last May, Preston reaffirmed the Administration’s quite limited notion of what constitutes an “associated force” against which Congress has authorized the President to use necessary and appropriate force, and further confirmed that Al Qaeda in the Arabian Peninsula (AQAP) was the only “associated force” against which the U.S. was then taking direct action (capture or lethal operations) outside the Afghan theater.* I wrote about that testimony here. Preston further explained that the military has also conducted capture or lethal operations outside the Afghan theater against individuals who are part of al-Qaeda itself (such as against some individuals in Somalia) — but that such operations are distinct from actions against “associated forces.”

In his speech today, Preston reaffirms those understandings, with even greater specificity. He explains that the U.S. is currently using force pursuant to the AUMF against these groups — and only these groups:

i. al-Qa’ida (including some “individuals who are part of al-Qa’ida in Somalia and Libya”)

ii. The Taliban

iii. “Certain other terrorist or insurgent groups in Afghanistan”

iv. AQAP

v. and, in the past year, the Nusrah Front–specifically, “those members of al-Qa’ida referred to as the Khorasan Group in Syria.”

Preston also reiterates the Administration’s explanations for how the 2001 and 2002 AUMFs authorize the current military operations against ISIL in Iraq and Syria.

2.  The Armed Conflict with the Taliban Has Not Ended

I discussed here the possible legal significance of the President’s declaration on December 28 that “our combat mission in Afghanistan is ending, and the longest war in American history is coming to a responsible conclusion” — in particular, how it might have been designed to signal the end of the armed conflict with the Taliban.

Preston’s speech today, however, specifies that the U.S. views that armed conflict as ongoing because “Taliban members continue to actively and directly threaten U.S. and coalition forces in Afghanistan, provide direct support to al-Qa’ida, and pose a strategic threat to the Afghan National Security Forces. In response to these threats, U.S. forces are taking necessary and appropriate measures to keep the United States and U.S. forces safe and assist the Afghans. In short, the enemy has not relented, and significant armed violence continues.” 

Preston further reiterates, however, that the U.S. is not using the full extent of its “armed conflict” authorities in Afghanistan. In particular, it does not appear to be engaged in military detention or in status-based targeting. Instead, it is engaged “in counterterrorism activity in Afghanistan to target the remnants of al Qa’ida and prevent an al-Qa’ida resurgence or external plotting against the homeland or U.S. targets abroad,” and with respect to the Taliban, “U.S. forces will take appropriate measures against Taliban members who directly threaten U.S. and coalition forces in Afghanistan, or provide direct support to al-Qa’ida. The use of force by the U.S. military in Afghanistan is now limited to circumstances in which using force is necessary to execute those two missions or to protect our personnel.”

3.  The Self-Defense Justification for the Use of Force Against ISIL in Syria

Preston explains the following:

Beyond the domestic legal authorities, our military operations against ISIL have a firm foundation in international law, as well. The U.S. Government remains deeply committed to abiding by our obligations under the applicable international law governing the resort to force and the conduct of hostilities. In Iraq, of course, the United States is operating against ISIL at the request and with the consent of the Government of Iraq, which has sought U.S. and coalition support in its defense of the country against ISIL. In Syria, the United States is using force against ISIL in the collective self-defense of Iraq and U.S. national self-defense, and it has notified the UN Security Council that it is taking these actions in Syria consistent with Article 51 of the UN Charter. Under international law, states may defend themselves, in accordance with the inherent right of individual and collective self-defense, when they face armed attacks or the imminent threat of armed attacks and the use of force is necessary because the government of the state where the threat is located is unwilling or unable to prevent the use of its territory for such attacks. The inherent right of self-defense is not restricted to threats posed by states, and over the past two centuries states have repeatedly invoked the right of self-defense in response to attacks by non-state actors. Iraq has been clear, including in letters it has submitted to the UN Security Council, that it is facing a serious threat of continuing armed attacks from ISIL coming out of safe havens in Syria, and it has asked the United States to lead international efforts to strike ISIL sites and strongholds in Syria in order to end the continuing armed attacks on Iraq, to protect Iraqi citizens and ultimately enable Iraqi forces to regain control of Iraqi borders. ISIL is a threat not only to Iraq and our partners in the region, but also to the United States. Finally, the Syrian government has shown that it cannot and will not confront these terrorist groups effectively itself.

None of this is new. It basically tracks Samantha Power’s letter to the U.N. in September, at the outset of the U.S. operations against ISIL, which I posted here. The one discrete matter that I imagine might engender some further questions, or debate, is the implication that the U.S. might be justified in using force against ISIL in Syria based not only on a theory of collective self-defense of Iraq (which is fairly uncontroversial), but also based upon a notion of self-defense against the threat of ISIL attacks against the United States. The Preston speech, like the Power letter, does not offer an evidentiary predicate for this secondary “self-defense of the U.S.” Article 51 argument (which is not necessary to the U.S.’s use of force), and it’s not obvious from the public record what it might be. It would be very beneficial, I think, if the U.S. were to offer whatever evidence it can in support of this notion, so as to better establish the sort of actions, and threats, against an acting state that might justify the use of force against the purportedly threatening nonstate actor in an nonconsenting state.

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* Moreover, Preston testified further — consistent with previous statements, such as in DOJ briefs in the al-Aulaqi case — that even AQAP itself may be “part of” al Qaeda. If that is so, it would mean the U.S. was not then using the AUMF’s authority respecting “associated forces” against any entities outside the Afghan theater.

 

About the Author(s)

Marty Lederman

Professor at the Georgetown University Law Center Follow him on Twitter (@marty_lederman).