Further thoughts on the Preston ASIL speech

This post is the latest installment of our “Monday Reflections” feature, in which a different Just Security editor examines the big stories from the previous week or looks ahead to key developments on the horizon.

I only had a few minutes on Friday to compose my post that day on Stephen Preston’s speech at ASIL.  For this Monday reflection, here’s a bit of elaboration on the most important aspects of the speech:

1.  Associated forces.  Stephen’s discussion of “associated forces” sought to clarify certain important points that have been widely misunderstood.  He reconfirmed that “not every group that commits terrorist acts is an associated force”; “[n]or 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.”  Moreover, “identifying a new group as an associated force is not done lightly.”

Most importantly, perhaps, Preston comprehensively enumerated the organizations against which the U.S. is currently using force pursuant to the AUMF–a listing that consists primarily of groups (e.g., AQAP, the Khoresan Group, ISIL) that are part of, or a successor spin-off of, al Qaeda itself.  It appears, therefore, that the “associated forces” concept is the necessary predicate for the U.S. use of force only against “certain other terrorist or insurgent groups in Afghanistan.”

It would be beneficial, I think, for the Administration to identify those associated Afghan groups.  If it did so, there likely would be very little controversy about their coverage under the AUMF, since presumablythey are engaged in sustained hostilities against the U.S. in Afghanistan itself, in support of, or in coordination with, al Qaeda and/or the Taliban.  Whether or not the Administration identifies such Afghan groups, however, Preston’s speech usefully clarified that the category of “associated forces” plays a much narrower and more circumscribed role in U.S. counterterrorism operations than many have assumed. 

2.  The ongoing armed conflicts.  Preston articulated the Administration’s view that the armed conflicts with al Qaeda and the Taliban continue in Afghanistan because “the enemy has not relented, and significant armed violence continues.”  This will undoubtedly be the government’s argument in the new habeas cases challenging continued detention of some enemy forces at GTMO after the alleged “end of hostilities” in Afghanistan.  It will be interesting to see whether any habeas judges insist upon evidence of such continuing “significant armed violence” between the U.S. and the Taliban or al Qaeda.  If the government proffers such evidence, habeas judges are unlikely to second-guess the military’s assessments about the continuation of hostilities, at least for the time being.

Of much greater possible significance, however, is the implication in Preston’s speech that, even if the U.S. remains engaged in armed conflicts with al Qaeda, the Taliban, and the other groups Preston identified, the United States is not necessarily using “war” authorities that depend upon the existence of such an armed conflict in most of those contexts.  There is a general impression among the public, and the international community, that the U.S. is engaged in an “endless” or “forever” war with certain terrorist groups.  It might well be the case, however, that the U.S. is using its “war” authorities only in limited and discrete circumstances and places.  For example, it has been many years since the U.S. has charged any newly captured enemy forces with law-of-war violations in military commissions.  And the U.S. has virtually ended military detention operations in Afghanistan and elsewhere, with the singular exception of the “legacy” detainees at GTMO (all of whom were captured many years ago).

That leaves status-based targeting–something that is permissible in an armed conflict but is generally not “necessary and appropriate” outside of armed conflict.  Where and against whom is the U.S. engaged in such status-based use of force?  Most prominently, presumably the U.S. is targeting ISIL forces based upon their status in Iraq and Syria.  But otherwise, it is not obvious that the U.S. is using force against al Qaeda, the Taliban and other groups in a way that it could not do outside an armed conflict . . . apart from, perhaps, what Preston referred to as “target[ing] the remnants of al Qa’ida” in Afghanistan.  With respect to the Taliban, for instance, Preston said that “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.”  Much, perhaps all, of such use of force would be permissible even in the absence of an armed conflict.  Similarly, outside the Afghan theater, and apart from the operations against ISIL, the President’s Policy Guidance generally limits the use of force “only to prevent or stop attacks against U.S. persons, and even then, only when capture is not feasible and no other reasonable alternatives exist to address the threat effectively.  In particular, lethal force will be used outside areas of active hostilities . . . only against a target that poses a continuing, imminent threat to U.S. persons.”

Assuming this account is roughly accurate, it would behoove the Administration to offer further detail about just where, and in what circumstances, U.S. operations include actions that could only be undertaken as part of a continuing “armed conflict.”  If those circumstances are, in fact, few and far between (as the government’s statements have suggested), then such an explanation would offer a corrective to the oft-heard notion of “forever” war.

3.  The self-defense rationale for action against ISIL in Syria.  This is the one part of Stephen’s speech that I suspect will engender the most controversy.

As I noted earlier, the U.S.’s principal international law justification for the use of force against ISIL in Syria, without Syrian consent, is based upon a collective defense of Iraq against ISIL.  That “Article 51” justification appears to be rather strong, and relatively uncontroversial.  In addition, however, Preston (like Samantha Power before him) also obliquely invoked “U.S. national self-defense.”  What is the basis for that apparent alternative Article 51 rationale?

Preston explained, correctly, that “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.”  But he did not offer any basis for why that predicate is satisfied here when it comes to U.S. self-defense (as opposed to defense of Iraq).  ISIL, as such, has not engaged in an armed attack against the U.S. and, as far as we know from the public record, it is not planning to do so imminently.

Perhaps the alternative U.S. self-defense rationale is predicated upon al-Qaeda’s attacks on the U.S. fourteen years ago (given that ISIL is an offshoot of AQ).  But if so, it is difficult to see how the U.S.’s sustained operations in Syria in 2014-2015 are a necessary and proportional response to those attacks, designed to stop further such attacks on the U.S. by ISIL (or by al-Qaeda).  Alternatively, perhaps the U.S. self-defense theory is predicated on ISIL’s more recent unlawful executions of U.S. citizens James Foley, Steven Sotloff and Peter Kassig.  If so, it is doubtful whether such discrete attacks on individuals would be sufficient under Article 51 to justify a responsive use of force in “self-defense” within the territory of a non-consenting state, since they almost surely do not satisfy the requirement of an “armed attack.”  But even if those executions were sufficient to trigger the threshold for self-defensive actions, the response within the nonconsenting state must still be proportional to the continuing threat to U.S. persons, and necessary to eliminate or diminish that threat.

It’s possible the U.S. could make such a showing here.  Preston stated that “ISIL continues to denounce the United States as its enemy and to target U.S. citizens and interests,” and is engaged in “threats to U.S. military personnel in Iraq.”  It is possible that the U.S.’s operations in Syria are a proportional and necessary response to such ISIL activities against the United States.  But, if so, the Administration has not yet offered a public explanation of why that might be so.  And in the absence of such an explanation, the Power and Preston references to the use of force in Syria in self-defense of the U.S. could be read to suggest a much broader theory of Article 51 self-defense than any this Administration has previously articulated, or that would appear to be supportable under international law.  In order not to engender such confusion or to leave the impression of such a troubling precedent, the Administration ought to further explain why the operations in Syria are a proportional and necessary exercise of self-defense to prevent future attacks by ISIL on the United States itself. 

About the Author(s)

Marty Lederman

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