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.
14-years into what’s becoming a forever war, we shouldn’t expect to stop fighting it anytime soon, the Pentagon’s top lawyer effectively said during a speech just over a week ago.
The United States can, and likely will keep fighting anything al-Qaeda “affiliated” including ISIL, indefinitely — and doing so requires no further authorization than the 2001 or 2002 AUMFs that provided for the invasions of Afghanistan and Iraq, he said.
The perils are obvious, we risk sticking with old ways of doing business in prosecuting this war. Ultra-secret targeted killing programs, detention and torture regimes, and mass surveillance authorities all stemmed from the US response to 9/11, and it’s possible they’ve done more long-term harm to this country than good. We risk continuing programs of debatable strategic effectiveness carried out with little to no input from the people in whose name they are pursued. Their details often aren’t secret to the people, families, and communities on the receiving ends of these programs. So the excuse for not debating these policies more in the open is mistaken. But in addition to raising concerns, that speech may signal that we have an opportunity to reshape the way we fight this conflict in the coming years.
This is the key passage from the April 10 talk that Defense Department General Counsel Stephen Preston’s gave to the American Society of International Law:
“Because the Taliban continues to threaten the U.S. and coalition forces in Afghanistan, and because al-Qaeda and associated forces continue to target U.S. persons and interests actively, the United States will use military force against them as necessary. Active hostilities will continue in Afghanistan (and elsewhere) at least through 2015 and perhaps beyond.” (Emphasis added.)
Preston doubled down on the idea that the White House doesn’t actually need the ISIL-specific AUMF that it has sought from Congress. ISIL was formed as part of al-Qaeda and is thereby fair game for the Pentagon’s crosshairs under the 2001 AUMF, said Preston. According to this logic, the US simply took a breather from fighting ISIL after American forces pulled out of Iraq in 2011. ISIL used this time-out to regroup after receiving an American pummeling and is now back, stronger than ever.
This means that the 2001 AUMF covers future combat against an amorphous collection of al-Qaeda affiliated groups we thought we’d defeated or anytime their remnants or descendants pick up arms again in a way considered threatening to American interests. As Ryan Goodman mentioned, this type of broad thinking risks opening the door to the endless game of global whack-a-mole which has been used to describe the war or terror.
That 14 year-old authority now covers at least eight different groups “and individuals” spread across the Middle East and Africa, according to Preston, who provided an updated list of everyone al-Qaeda-related that the US is fighting under the 2001 AUMF.
That list includes:
- The Taliban
- “Certain other terrorist or insurgent groups in Afghanistan”
- Yemen-based al-Qaeda in the Arabian Peninsula (AQAP)
- “Individuals who are part of” al-Qaeda in Libya
- “Individuals who are part of” al-Qaeda in Somalia
- Nusra Front, “specifically, those members of al-Qaeda referred to as the Khorosan Group in Syria.” (Preston was unclear about whether Nusra and Khorosan are considered one group.)
- ISIL, described by Preston as, “the group we fought in Iraq when it was known as al-Qaeda in Iraq, which is now known as ISIL.”
Notice how wide-ranging this list of al-Qaeda-aligned groups is, many of which didn’t exist in 2001. It’s also worth noting that Preston framed this list as groups the US is currently fighting. He didn’t say if there are other groups covered by the 2001 AUMF whom the US hasn’t decided to use force against yet.
When and how then will this war being fought far and wide ever end?
Quoting his predecessor, Jeh Johnson, Preston said that this war will continue until “so many of the leaders and operatives of al-Qaeda and its affiliates have been killed or captured, and the group is no longer able to attempt to launch a strategic attack against the Unites States, such that al-Qaeda as we know it, the organization that our congress authorized the military to pursue in 2001, has been effectively destroyed.”
Somewhat ironically, Johnson delivered those lines during a 2012 speech at Oxford University discussing a future “tipping point” when the war that began in 2001 would start winding down, along with its accompanying legal authorities. As we’ve seen in the two and a half years since that speech, the war against al-Qaeda, or anyone the US government deems an affiliate, hasn’t wound down despite long-running claims of core al-Qaeda’s “decimation.” If anything, this war is going strong (according to administration officials like John Brennan) even though its debatable as to whether killing or capturing every al-Qaeda affiliated terrorist we can find is effective in stopping new ones from popping up in their place.
Given the hawkish nature of Preston’s speech, it’s worth asking why the White House has been pushing for a new ISIL-specific AUMF if it feels authorized to be at war indefinitely?
Preston repeatedly mentioned that there must be a “follow-on legal framework” to the 2001 AUMF that provides the “series of persistent, targeted efforts to dismantle specific networks of violent extremists that threaten America” as described by President Obama in May 2013.
His answer to the new AUMF question was shrouded in the language of “supporting the troops” and empowering the President to meet shifting terrorist threats, but Preston’s language seemed to subtly belie a different message: we’re going to be at war for years, we might as well be smart about it. We can either wage it according to the AUMFs that helped lead to disastrous land wars in Asia, or we can attempt now to restrict and shape the way this ongoing war is directed by future administrations and congresses.
As Marty Lederman pointed out, Preston’s speech might have implied that the US is narrowing the use of “war” authorities even as this war continues. But while Preston’s speech appears to hint using a “framework” to restrict those “unbound powers more suited for traditional armed conflict between nations” mentioned by the president nearly two years ago, the Pentagon lawyer was short on details about how this would be achieved.
Yes, it will be challenging to make sure that the follow-on framework is “adequate and appropriately tailored to the present and foreseeable threat,” as Preston put it. But given the way al-Qaeda affiliated groups have emerged to threaten US interests throughout the Middle East and Africa, and how past threats seem to have ways of coming back no matter how many people are killed, this follow-on framework is already at risk of being overly broad unless it is carefully and publicly scrutinized.
If the administration is serious about crafting a new framework, it is presenting the United States with an opportunity to decide as a nation how to deal with the threat posed by terrorist groups, whether al-Qaeda affiliates or not. We must ensure Congress is heavily involved in authorizing the opening of any new fronts in combating threats as well as developing a clear vision of what constitutes “victory.”
This country, now long removed from the immediate emotional aftermath of 9/11, must debate what it will mean to be at war for the coming years. This is the chance to discuss how a war against terror will be fought as well as how it won’t be. How many botched drone strikes and night raids have produced new crops of fighters dedicated to avenging the deaths of their friends and family at American hands?
The discussion about how we move ahead in this conflict cannot be secret. It has to be public and messy, as questions of war and peace are some of the most important to a democracy. The framework presents an opportunity to engage multidisciplinary groups of experts who can help devise a genuine solution to the threat that goes beyond whack a mole first, then clean up the collateral mess. This discussion should involve NGOs, academia, and even religious experts in addition to the military, intelligence, and law enforcement experts who have helped shape the war as it’s been fought for the last decade and a half.
In a few years, we might look back at Preston’s speech as the small opening of an opportunity for this nation to have a genuine conversation about the smartest way to deal with the threat from al-Qaeda and any other groups that wage “war” against the United States. But we might also look back and see a lost opportunity to move toward a solution to the threat. Instead of crafting a new way to end this war, we stuck with old ways of doing business.