Congressional Confusion: Syria and the AUMF

In the wake of President Obama announcing airstrikes against the Islamic State inside Syria, the U.S. Congress has been in a state of confusion about the legality of the administration's actions.  Some members are  calling the strikes outright illegal, while others seem happy to see Islamic State terrorists targeted regardless of the legality.  U.S. and international media outlets are equally confused, and pressure has been levied on U.S. lawmakers to take action and "do their job."  The strikes are legal under the 2001 AUMF that was first put into use against al Qaeda and the Taliban in Afghanistan, and it is very important to understand that legality going forward.

Since the AUMF does not specify any nation, organization, or person, the Obama administration can target any person or group that they can link to al Qaeda or to having supported the 9/11 terrorist attacks.  Clearly, they have conclusively linked the Islamic State, Khorasan Group, and al-Nusra Front in this manner.

So where does the Congress go from here?  If  they pass a new law authorizing U.S. air strikes in Syria they risk unnecessarily expanding the scope of U.S. anti-terror military operations.  Importantly, they would be specifying a country - Syria - in a way the U.S. has not done before.  Adding to the 2001 AUMF, by legislating approval for new action specific to Syria, the U.S. would effectively be starting a new war when the old war is still under way and legal.  That being said, the Syrian government does not currently fall under the AUMF and strikes against it would be illegal.  The President would be wise to keep that top of mind as these military operations progress.

Congress might be better off taking this opportunity to reevaluate the 2001 AUMF and passing legislation to limit its scope, rather than explicitly authorizing a new battleground.  Limiting its scope would force the President to be very measured when deciding on which terrorist targets to attack.  However, terrorism thrives in regions where governments have failed, and it should be of no surprise that Syria is a place of its manifestation.  This insidious harmony is likely to continue, so Congress should consider this when deciding on any action to limit the AUMF and the President's ability to act quickly.

And, while the current strikes in Syria are legal under U.S. law, they may not be as clearly legal under international law.  Their international legality should be studied further.

Yemen and the Continued use of the AUMF

It has been in the news recently that the Director of the U.S. CIA, David Petraeus, has asked President Obama to expand the use of armed drones over the Arabian skies of turmoil-ridden Yemen.  Critics, including Yale Law School professor Bruce Ackerman in an article published in the Washington Post on April 20th (http://www.law.yale.edu/news/15401.htm), have said that Obama's executive authorization of the expanded (or continued) use of drones in Yemen would be illegal without the statutory consent of the U.S. Congress.  Ackerman finds that the Authorization for the Use of Military Force (AUMF) passed by congress in 2001, authorizing the president to militarily engage any and all of those persons and organizations whom operationally supported or were directly responsible for the attacks of 9/11, does not apply to Yemen and presumably the terrorist group al Qaeda in the Arabian Peninsula (AQAP).  I, however, tend to disagree with Ackerman's conclusion.

First, nowhere in the AUMF does it specify that military engagement of those responsible for the 9/11 attacks is limited to Afghanistan. Nor does it specify that military engagement is limited to al Qaeda. However unfortunate some may find the wording, the AUMF allows for military engagement against any organization or support-network which the U.S. finds was responsible for 9/11 wherever they may be on Earth. Clearly, this vague terminology played a role in creating a political firestorm regarding the status of terrorists caught within the U.S., but that's an issue for another day.

Secondly, there is the quite obvious fact that AQAP carries the al Qaeda name and banner.  This isn't just a convenient branding, AQAP's leaders have ascribed to al Qaeda proper's agenda and have pledged loyalty to its leader - initially Osama bin Laden and now Ayman al-Zawahiri.  While other jihadist groups have a primarily regional or nationalist terror agenda, AQAP's main focus is the continued use of Yemen as a sanctuary to make certain that the U.S. experiences more and even deadlier 9/11s.  Neither Al-Shabaab, nor Boko Haram, nor even the Afghan and Pakistani Taliban have such a clear and concise anti-American agenda.  To be sure, there is no difference between al Qaeda's agenda prior to 9/11 and AQAP's current agenda.

Lastly, while the AQAP name was not official when 9/11 occurred, there is the history of operational linkages between al Qaeda and Yemen.  Fazul Abdullah Mohammed, the al Qaeda operative responsible for the deadly 1998 bombings of the U.S. Embassies in Tanzania and Kenya, was known to be the link between Al-Shabaab and AQAP before his death in 2011.  In fact, phone records identified a location in Yemen as a key al Qaeda planning and support hub in the successful carrying-out of those bombings.  Furthermore, al Qaeda planned and executed the 2000 suicide-bombing of the USS Cole in Yemen, and both suicide-bombers, as well as many of their convicted accomplices, were Yemeni nationals.  It is no wonder that on September 11, 2001, Ali Soufan and other special agents of one of the FBI's top counterterrorism squads at the time, I-49, watched the 9/11 attacks unfold from a television in the U.S. Embassy in Sana'a.

At first glance it may appear to some that AQAP is wholly apart from al Qaeda - or at the most a loosely affiliated iteration - but upon closer inspection one can see that AQAP is al Qaeda and always has been.