Expanding the Reach of the 2001 AUMF

by Travis Normand
December 28, 2016

The following article was posted about a month ago at NYTimes.com. It explains that the Obama administration has expanded its reading/interpretation of the 2001 AUMF to include Shabab in Somalia.

While some are critical of this move by the administration, it is always interesting to me to see how Congress will react and if they will step-in and say that such an interpretation of their 2001 AUMF (Congressional Authorization) is incorrect or too expansive. Or, will Congress sit back and do nothing, giving the implied authorization that such a reading is correct?

Either way, you can rest assured that the President will take the heat for having such an expansive reading, while few will blame Congress for staying silent on the issue.

I have not reposted the entire article below. I have merely reposted the parts that I found most poignant (emphasis added). To read the entire article, please visit NYTimes.com.

Obama Expands War With Al Qaeda to Include Shabab in Somalia
By Charlie Savage, Eric Schmmitt and Mark Mazzetti
November 27, 2016
NYTimes.com

WASHINGTON — The escalating American military engagement in Somalia has led the Obama administration to expand the legal scope of the war against Al Qaeda, a move that will strengthen President-elect Donald J. Trump’s authority to combat thousands of Islamist fighters in the chaotic Horn of Africa nation.

The administration has decided to deem the Shabab, the Islamist militant group in Somalia, to be part of the armed conflict that Congress authorized against the perpetrators of the Sept. 11, 2001, terrorist attacks, according to senior American officials. The move is intended to shore up the legal basis for an intensifying campaign of airstrikes and other counterterrorism operations, carried out largely in support of African Union and Somali government forces.

The executive branch’s stretching of the 2001 war authorization against the original Al Qaeda to cover other Islamist groups in countries far from Afghanistan — even ones, like the Shabab, that did not exist at the time — has prompted recurring objections from some legal and foreign policy experts.

The Shabab decision is expected to be publicly disclosed next month in a letter to Congress listing global deployments. It is part of the Obama administration’s pattern of relaxing various self-imposed rules for airstrikes against Islamist militants as it tries to help its partner forces in several conflicts.

* * *

Later in the summer, the administration deemed Surt, Libya, an “area of active hostilities,” after the Libyan prime minister asked for assistance in dislodging Islamic State militants from that city. The move exempted the area from 2013 rules that restrict drone strikes and other counterterrorism operations away from battlefield zones, which President Obama had announced in a major speech that year that sought to turn a page in the long-running war against Al Qaeda.

As of last week, the Pentagon had carried out 420 airstrikes against militants in Surt since August.

In Somalia, the 2013 rules limiting airstrikes away from “areas of active hostilities” still apply for now. But in practice, restrictions are being eased there in another way: Over the past year, the military has routinely invoked a built-in exception to those rules for airstrikes taken in “self-defense,” which can include strikes to help foreign partners even when Americans are not at direct risk.

* * *

But some experts criticized the administration for using a 15-year-old congressional authorization as a justification to go to war with the Shabab.

“It’s crazy that a piece of legislation that was grounded specifically in the experience of 9/11 is now being repurposed for close air support for regional security forces in Somalia,” said Micah Zenko, a senior fellow at the Council on Foreign Relations.

Under the 2001 authorization, the United States is engaged in an armed conflict with a specific organization, not every Islamist militant in the world. But that authority has proved elastic.

In 2014, for example, Mr. Obama declared that the 2001 law authorized him to battle the Islamic State in Iraq and Syria. An Army captain rejected that claim and argued that the Islamic State war was illegal because Congress had never explicitly approved it. Last week, a judge dismissed that lawsuit [Note 1], without ruling on its merits.

In Somalia, the United States had long taken the position that a handful of Shabab leaders, as individuals, had sufficient ties to Al Qaeda to make them wartime targets. But it has debated internally for yearswhether the Shabab as a whole, including their thousands of foot soldiers, can or should be declared part of the enemy.

To qualify as an “associated force,” a group must be an organized armed body that has aligned with Al Qaeda and entered the fight against the United States or its partners. Officials declined to discuss whether there were specific new reasons to justify declaring that the Shabab could meet that standard.

While using a piece of legislation from 2001 may be “crazy” as Mr. Zenko points out, if it is an incorrect usage of such legislation, shouldn’t Congress step-up and say so?

In particular, officials said, Somalia — unlike Afghanistan, Iraq, Syria and Surt — will continue to be subject to the Presidential Policy Guidance, the set of 2013 rules for drone strikes and other counterterrorism operations outside conventional war zones.

The 2013 rules apply restraints on the use of lethal force outside areas of active hostilities. They include high-level interagency review of proposed strikes and requirements that the target pose a threat to Americans — not just to American interests — and near certainty that no civilians would be killed.

But the military always retains an inherent right to carry out strikes in its own defense, officials said, and it has conducted “collective self-defense” strikes to aid partners in Somalia with growing frequency over the past year.

Notes:

[Note 1]:  Suit Calling War on ISIS Illegal is Rejected, by Charlie Savage, November 22, 2016, NYTimes.com, found at http://www.nytimes.com/2016/11/21/us/politics/judge-lawsuit-war-isis.html.

[More on Note 1]: An Army Captain Takes Obama to Court Over ISIS Fight, by Charlie Savage, May 4, 2016, NYTimes.com, found at http://www.nytimes.com/2016/05/05/us/islamic-state-war-powers-lawsuit-obama.html.

[More on Note 1]: Nathan Michael Smith v. Barack H. Obama, U.S. District Court for District of Colombia, Civil Action Number 16-843 (CKK) or 1:16-CV-00843-CKK, Memorandum Opinion, November 21, 2016 (Dismissed for Lack of Standing) https://www.documentcloud.org/documents/3223769-Smith-Opinion-Dismissing-Case.html.

[More on Note 1]: Briefs from Nathan Michael Smith v. Barack H. Obama http://www.charliesavage.com/?p=1284.

[More on Note 1]: Who Is Capt. Nathan Michael Smith? US Intelligence Officer Sues President Barack Obama Over Legality Of ISIS Fight, by Vishakha Sonawane, May 5, 2016, IBTimes.com, found at http://www.ibtimes.com/who-capt-nathan-michael-smith-us-intelligence-officer-sues-president-barack-obama-2364388 (Explaining that members of the military are required to refuse to follow illegal orders).

 

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