On Friday, the Legal Adviser of the State Department, Brian Egan answered questions posed to him by New York Times journalist Charlie Savage on the current reach of Congress’s September 2001 Authorization for the Use of Military Force (AUMF). The discussion took place on a panel at the “International Law Weekend,” an annual conference held at Fordham University School of Law. (See also Kate Brannen’s post on Egan’s remarks about the potential future wave of ISIL detainees held by the United States or U.S. partner forces.) Before getting into details about Egan’s remarks, we should simply reflect on the commendable act on the part of the administration and, in particular, Brian Egan to engage in this kind of open-ended discussion with a highly knowledgeable journalist, other co-panelists with legal expertise (including Just Security’s Jen Daskal and Oona Hathaway), and the conference participants in the Q&A.

Savage asked Egan which groups the administration currently considers an associated force of Al-Qaeda under the 2001 AUMF, and, as Savage put it, “the acute question being al-Shabaab in Somalia.”

Prior Administration Statements about al-Shabaab

At the April 2015 annual meeting of the American Society of International Law, then-General Counsel of the Department of Defense, Stephen Preston provided an exhaustive list of terrorist groups that the administration considered “associated forces” of Al Qaeda “against which the U.S. military is currently taking direct action under the authority of the 2001 AUMF.” His list included “individuals who are part of al-Qa’ida in Somalia,” and he made no specific mention of al-Shabaab.  That statement was consistent with what Marty Lederman had written earlier at Just Security, namely, that “the U.S. has used force against certain al-Shabaab militants in Somalia not because it has deemed al-Shabaab an ‘associated force,’ but instead because those ‘limited number of targets’ have ‘been determined to be part of al-Qa’ida’ itself.” The key to that assessment was another statement by Preston in congressional testimony in May 2014:

“[T]he U.S. military has also conducted capture or lethal operations under the AUMF outside of Afghanistan against individuals who are part of al-Qa’ida and targeted as such. For example, in Somalia, the U.S. military has conducted direct action against a limited number of targets who, based on information about their current and historical activities, have been determined to be part of al-Qa’ida. (Some of these individuals are also part of al-Shabaab, a group that is openly affiliated with al-Qa’ida.)”

[Editor’s Note: See also Ryan Goodman, “Targeting Al-Shabaab’s Godane is not the same as targeting Al-Shabaab,” Just Security, Sept. 2, 2014.]

U.S. Military Strikes Against Members of al-Shabaab post April 2015

Since that speech, the U.S. military has conducted other strikes against Al-Shabaab members, which have given rise to speculation (here and here) whether these actions were carried out under a revised interpretation of the AUMF now applying force to Al-Shabaab as a group.  

Here’s what Egan said in response to Savage’s question about al-Shabaab:

“I think we’ve been clear, including in our War Powers reports, that we have relied on the AUMF in using force against elements of Al-Shabaab that are associated with Al-Qaeda, but not the group writ large. I think the most recent statement we’ve made on that is our June 2016 War Powers report, which is on the White House website.”

The June 2016 War Powers Report states:

“In Somalia, U.S. forces continue to counter the terrorist threat posed by al-Qa’ida and associated elements of al-Shabaab and to provide advice and assistance to regional counterterrorism forces, including Somali National Army and African Union Mission in Somalia (AMISOM) forces. On March 31, 2016, U.S. forces conducted an airstrike against an al-Shabaab senior leader, Hassan Ali Dhoore, who is part of al-Qa’ida. On May 27, 2016, U.S. forces carried out an airstrike against Abdullahi Haji Da’ud, one of al-Shabaab’s most senior commanders, who is also part of al-Qa’ida and served as the principal coordinator of al-Shabaab’s attacks in Somalia and Kenya. United States forces also conducted strikes in defense of U.S. forces, and in defense of partnered Somali and AMISOM forces between March 5 and May 13, 2016, notably including the March 5 airstrike against an al-Shabaab training facility where fighters posed an imminent threat to U.S. and AMISOM forces.” (emphasis added)

Notably, the Pentagon said the March 5 drone strike killed more than 150 fighters about to graduate from a training camp. The White House press secretary stated at the time:

“What I can tell you is that on Saturday, March 5th, the United States military conducted airstrikes in Somalia against Raso Camp, a training facility of al Shabaab.  As you know, al Shabaab is an al Qaeda-affiliated terrorist organization.  The fighters who were at that camp were scheduled to depart the camp.

[T]he fighters who were scheduled to depart the camp posed an imminent threat to U.S. and African Union Mission forces in Somalia.  The removal of those terrorist fighters degrades al Shabaab’s ability to meet the group’s objectives in Somalia, including recruiting new members, establishing bases, and planning attacks on U.S. and AMISOM forces.”

The Department of Defense had issued a similarly worded statement.

The Future

It is admittedly a long time to wait to address an “acute question” that has been on the minds of some of the closest observers of U.S. military actions—and the answer provided might not even fully satisfy. If it is not too late for this administration, perhaps the next can better institutionalize a process of reporting publicly and more fully on these issues. In that respect, it is worth noting that Sen. Tim Kaine once wrote a proposed AUMF for ISIL which would have required (see section 4) the President to provide Congress a list of associated forces that the United States is fighting under that authority. According to his vision, “the list shall be maintained in unclassified form but may contain a classified annex.” That’s a good idea. The current or next White House could, of course, take this step without the need for a congressional statute to get them there.  

Image:  U.S. Marine Corps Sergeant, Special-Purpose Marine Air-Ground Task Force Africa, coaches a Uganda People’s Defense Force soldier on March 7, 2013, preparing for deployment to Somalia in support of the African Union Mission in Somalia. CJTF-HOA Photo by Tech. Sergeant Kelly White.