By Jim Garamone
DoD News, Defense Media Activity
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.”
Posts
