NEWS | April 13, 2015

Top DoD attorney charts evolution of use of force law

WASHINGTON, April 13, 2015 – Though the very idea of law sounds immutable and concrete, the law evolves as circumstances change, the Defense Department’s general counsel told the American Society of International Law here April 10.

Stephen W. Preston updated the group on the latest thinking behind the legal framework for military options and on how that thinking has changed.

Preston explained the history behind the authorization for the use of military force that allowed operations against al-Qaida in 2001. The AUMF, as it is commonly abbreviated, was not a traditional declaration of war against a state, he said.

“We had been attacked, instead, by a terrorist organization,” he said. “Yes, the Taliban had allowed [Osama] bin Laden and his organization to operate with impunity within Afghanistan. But it was not Afghanistan that had launched the attack. It was bin Laden and his terrorist organization.

“The authorization for the use of military force that Congress passed aimed to give the president all the statutory authority he needed to fight back against bin Laden, his organization and those who supported him, including the Taliban,” Preston added.

Associated Forces

Congress, the executive branch and the courts agreed in 2011 that the 2001 AUMF covered associated forces, too: al-Qaida, the Taliban and certain other terrorist or insurgent groups in Afghanistan; al-Qaida in the Arabian Peninsula in Yemen; and individuals who are part of al-Qaida in Somalia and Libya, the general counsel said.

“In addition, over the past year, we have conducted military operations under the 2001 AUMF against the Nusrah Front and, specifically, those members of al-Qaida referred to as the Khorasan Group in Syria,” he added. “We have also resumed such operations against the group we fought in Iraq when it was known as al-Qaida in Iraq, which is now known as [the Islamic State of Iraq and the Levant].”

Putting groups into this category is done only at the highest levels of the U.S. government, Preston said.

He stressed that American actions against ISIL are consistent with international and domestic law. ISIL grew out of al-Qaida in Iraq, and Americans and American interests have been targets of the terror group since 2004, he said.

ISIL’s recent split from al-Qaida does not change the situation in respect to law, Preston told the group. ISIL considers itself to be the true inheritor of bin Laden’s legacy and groups that have pledged loyalty to ISIL, he explained, adding that this alone covers the group under the 2001 AUMF.

Authorization for Force in Iraq

Preston stressed that the president’s authority to fight ISIL is further reinforced by the 2002 authorization for the use of military force against Iraq. “That AUMF authorized the use of force to, among other things, ‘defend the national security of the United States against the continuing threat posed by Iraq,’” he said.

Though the AUMF was directed against Saddam Hussein’s regime, “the statute … has always been understood to authorize the use of force for the related purposes of helping to establish a stable, democratic Iraq and addressing terrorist threats emanating from Iraq,” he said.

For current operations in Iraq, he noted, the Iraqi government requested American help against ISIL. “In Syria, the United States is using force against ISIL in the collective self-defense of Iraq and U.S. national self-defense, and it has notified the U.N. Security Council that it is taking these actions in Syria consistent with Article 51 of the U.N. Charter,” he said. Article 51 allows for self-defense actions.

Though the NATO combat mission in Afghanistan ended in December, the 2001 AUMF remains valid, Preston said.

“Although our presence in that country has been reduced and our mission there is more limited, the fact is that active hostilities continue,” he said. “As a matter of international law, the United States remains in a state of armed conflict against the Taliban, al-Qaida and associated forces, and the 2001 AUMF continues to stand as statutory authority to use military force.”

The roughly 10,000 U.S. service members in Afghanistan have two missions, Preston told the group. The first -- a NATO mission -- is to continue training Afghan security forces. The second is a counterterrorism mission aimed at the remnants of al-Qaida and to prevent an al-Qaida resurgence or external plotting against the homeland or U.S. targets abroad, the general counsel said.

“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,” he said.

Adapting Law to the ISIL Fight

Preston then turned to current discussions over an AUMF aimed directly at ISIL. President Barack Obama wants ultimately to repeal the 2001 AUMF and to tailor its authorities to better fit the current fight and the strategy going forward, he said. In February, the president submitted draft legislation authorizing use of “the armed forces of the United States as the president determines to be necessary and appropriate against ISIL or associated persons or forces.”

“This raises the question: If the president already has the authority needed to take action against ISIL, why is he seeking a new authorization?” the general counsel asked. “Most obviously and importantly, as the president has said, the world needs to know we are united behind the effort against ISIL, and the men and women of our military deserve our clear and unified support. Enacting the president’s proposed AUMF will show our fighting forces, the American people, our foreign partners and the enemy that the president and Congress are united in their resolve to degrade and defeat ISIL.”