As Marty has already written, the Department of Defense’s General Counsel Stephen Preston gave a speech tonight at the American Society of International Law “the Legal Framework for the United States’ Use of Military Force Since 9/11.” Having strategically placed myself next to one of the microphones tantalizingly set up for what I assumed would be a Q and A session to follow the remarks, I was surprised when Preston exited without taking questions from the audience. Had he lingered, here are the two questions I would have posed:
(one.) Mr. Preston, you just gave a very strong defense of the definition of associated force announced by your predecessor Jeh Johnson and applied to the determination of what entities constitute associated forces of al Qaeda covered by the 2001 Authorization to Use Military Force (AUMF). As you put it:
[C]onsistent with international law principles, an associated force must be both (1) an organized, armed group that has entered the fight alongside al-Qa’ida, and (2) a co-belligerent with al-Qa’ida in hostilities against the United States or its coalition partners. This means that not every group that commits terrorist acts is an associated force. Nor is a group an associated force simply because it aligns with al-Qa’ida. Rather, a group must have also entered al-Qa’ida’s fight against the United States or its coalition partners.
You then went on to explain that only a handful of groups have met this definition to date—namely Al Qaeda in the Arabian Peninsula; the Khorasan Group; al Nusra Front; and “other terrorist or insurgent groups in Afghanistan” (although some of these are likely connected to the Taliban rather than al Qaeda). While you also noted that other individuals in Syria and Libya have been targeted pursuant to the 2001 AUMF, you were careful to emphasize that those individuals were “part of” al Qaeda, and thus presumably not covered by the concept of associated forces. And you continued:
The concept of associated forces under the 2001 AUMF does not provide the President with unlimited flexibility to define the scope of his statutory authority. Our government monitors the threats posed to the United States and maintains the capacity to target (or stop targeting) groups covered by the statute as necessary and appropriate. But identifying a new group as an associated force is not done lightly. The determination that a particular group is an associated force is made at the most senior levels of the U.S. Government, following reviews bysenior government lawyers and informed by departments and agencies with relevant expertise and institutional roles, including all-source intelligence from the U.S. intelligence community. In addition, military operations against these groups are regularly briefed to Congress. There are no other groups – other than those publicly identified, as I have just described – against which the U.S. military is currently taking direct action under the authority of the 2001 AUMF.
But this definition of associated forces — which you suggest has worked so well to date — is not the same as that proposed by the administration in its draft AUMF for ISIL. The definition of associated forces included in the draft ISIL AUMF is something different, and much broader. Specifically, it is defined to include “individuals and organizations fighting for, on behalf of, or alongside ISIL or any closely-related successor entity in hostilities against the United States or its coalition partners.”
Unlike the definition of associated force used in connection with the 2001 AUMF, the definition included in the draft ISIL AUMF is not just limited to organized armed groups, but also applies to individuals. It does not include a required finding of co-belligernecy. It encompasses those that “fighting for, on behalf of, or alongside ISIL” — thus raising the possibility of construing the authorization to cover the use of force against ISIL wannabes or ISIL-inspired groups all around the world, of which there are many. And it extends the definition to cover so-called “successor” entities, without clarity as to whether and in what circumstances a splinter group from a splinter group might qualify.
So here is my question: Why this new language? Why doesn’t the administration seek to codify the definition of associated forces that it has been applying with respect to the 2001 AUMF, and that you so eloquently defended?
(two.) You once again reiterated the President’s commitment to refine, and ultimately repeal, the 2001 AUMF. Yet, the administration’s draft ISIL AUMF leaves the 2001 AUMF untouched. It does not refine it; it does not repeal it; and it does not even seek to sunset it.
The result is — contrary to the stated desire to “tailor” use of force authorities and set “reasonable limitations” — an arguable expansion of the authority to wage war. The 2001 AUMF provides a source of authority to fight ISIL, and the ISIL AUMF adds to that authority. Importantly, the three year sunset included in the administration’s draft ISIL AUMF is effectively rendered meaningless. A future administration could, absent a corresponding 2001 AUMF sunset, simply revert back to the 2001 AUMF as a means of continuing the conflict against ISIL, even if Congress chose not to reauthorize the conflict at that point.
As Defense Secretary Ash Carter testified before the Senate Foreign Relations Committee in February, a sunset provision is not the same as an end of conflict provision. Rather, it stems from the important principle, derived from the Constitution, that the grave matter of authorizing armed conflict should be a shared responsibility of the president and Congress. As Carter put it, albeit in the context of discussing an ISIL-specific sunset, a sunset provision “affords the American people the chance to assess our programs in three year times, and provides the next president and the next Congress the opportunity to reauthorize it, if they find it necessary.”
Why not include a 2001 AUMF sunset, so that come 2018, Congress and the American people have a chance to assess whether the conflict should be re-authorized, and if so, against whom and for what purposes?
And with those two questions, I would have thanked you for your service and your time.