“Associated Forces” has a legal meaning . . . but it’s not “every group that calls itself al Qaeda”

Daphne reports that at a House Armed Services hearing today, Christopher Swift of the UVa Center for National Security Law emphasized that “the United States has to stop lumping together every group that calls itself ‘al Qaeda’ and assuming it’s an ‘associated force’ worth fighting militarily.  Many of these groups are instead creating or responding to ‘regional crises’ with ‘unique causes, characteristics, and consequences.’  Failure to distinguish the threats they pose ‘weaken[s] the consistency and perceived legitimacy of our operations.'”

One small problem with this criticism:  The United States — unlike many media sources — does not “lump together” every group that uses the “al Qaeda” moniker, let alone consider each of them an “associated force” against whom lethal force may be used.

As Jeh Johnson, then DOD General Counsel, explained on behalf of the Administration two years ago:

Nor is the concept of an “associated force” an open-ended one, as some suggest.  This concept, too, has been upheld by the courts in the detention context [FN:  See, e.g., Barhoumi v. Obama, 609 F.3d 416, 432 (D.C. Cir. 2010); Hamlily v. Obama, 616 F. Supp. 2d 63, 74-75 (D.D.C. 2009); Gherebi v. Obama, 609 F. Supp. 2d 43, 69 (D.D.C. 2009).], and it is based on the well-established concept of co-belligerency in the law of war.  The concept has become more relevant over time, as al Qaeda has, over the last 10 years, become more de-centralized, and relies more on associates to carry out its terrorist aims.

An “associated force,” as we interpret the phrase, has two characteristics to it: (1) an organized, armed group that has entered the fight alongside al Qaeda, and (2) is a co-belligerent with al Qaeda in hostilities against the United States or its coalition partners.  In other words, the group must not only be aligned with al Qaeda.  It must have also entered the fight against the United States or its coalition partners.  Thus, an “associated force” is not any terrorist group in the world that merely embraces the al Qaeda ideology. More is required before we draw the legal conclusion that the group fits within the statutory authorization for the use of military force passed by the Congress in 2001.

And what of all those groups that fancy themselves part of al Qaeda?  Doesn’t the Administration treat them as if they are al Qaeda, and thus part of an armed conflict with the United States, such that their forces may be targeted with lethal force?

No.

In a recent interview with the President (which Harold flagged earlier), David Remnick “pointed out that the flag of Al Qaeda is now flying in Falluja, in Iraq, and among various rebel factions in Syria; Al Qaeda has asserted a presence in parts of Africa, too.”  This was the President’s response:

“The analogy we use around here sometimes, and I think is accurate, is if a jayvee team puts on Lakers uniforms that doesn’t make them Kobe Bryant,” Obama said, resorting to an uncharacteristically flip analogy. “I think there is a distinction between the capacity and reach of a bin Laden and a network that is actively planning major terrorist plots against the homeland versus jihadists who are engaged in various local power struggles and disputes, often sectarian.

“Let’s just keep in mind, Falluja is a profoundly conservative Sunni city in a country that, independent of anything we do, is deeply divided along sectarian lines. And how we think about terrorism has to be defined and specific enough that it doesn’t lead us to think that any horrible actions that take place around the world that are motivated in part by an extremist Islamic ideology are a direct threat to us or something that we have to wade into.”

He went on, “You have a schism between Sunni and Shia throughout the region that is profound. Some of it is directed or abetted by states who are in contests for power there. You have failed states that are just dysfunctional, and various warlords and thugs and criminals are trying to gain leverage or a foothold so that they can control resources, populations, territory. . . . And failed states, conflict, refugees, displacement—all that stuff has an impact on our long-term security. But how we approach those problems and the resources that we direct toward those problems is not going to be exactly the same as how we think about a transnational network of operatives who want to blow up the World Trade Center. We have to be able to distinguish between these problems analytically, so that we’re not using a pliers where we need a hammer, or we’re not using a battalion when what we should be doing is partnering with the local government to train their police force more effectively, improve their intelligence capacities.”

For much more on how this Administration deals with terrorist groups other than “associated forces,” including some that are, or that purport to be, affiliates of al-Qaeda, or inspired by al Qaeda–that is to say, “groups and individuals against whom the United States is not authorized to use force based on the authorities granted by the [AUMF]”–see the President’s National Strategy on Counterterrrorism.  (The quotation, and the distinction, are from footnote 1 of the Strategy.) 

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Marty Lederman

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