A new generation of al-Qaeda offshoots is forcing the Obama administration to examine whether the legal basis for its targeted killing program can be extended to militant groups with little or no connection to the organization responsible for the attacks on Sept. 11, 2001, U.S. officials said.
The Authorization for Use of Military Force, a joint resolution passed by Congress three days after the strikes on the World Trade Center and the Pentagon, has served as the legal foundation for U.S. counterterrorism operations against al-Qaeda over the past decade, including ongoing drone campaigns in Pakistan and Yemen that have killed thousands of people.
But U.S. officials said administration lawyers are increasingly concerned that the law is being stretched to its legal breaking point, just as new threats are emerging in countries including Syria, Libya and Mali.
“The farther we get away from 9/11 and what this legislation was initially focused upon,” a senior Obama administration official said, “we can see from both a theoretical but also a practical standpoint that groups that have arisen or morphed become more difficult to fit in.”
The waning relevance of the 2001 law, the official said, is “requiring a whole policy and legal look.” The official, like most others interviewed for this article, spoke on the condition of anonymity to discuss internal administration deliberations.
The authorization law has already been expanded by federal courts beyond its original scope to apply to “associated forces” of al-Qaeda. But officials said legal advisers at the White House, the State Department, the Pentagon and intelligence agencies are now weighing whether the law can be stretched to cover what one former official called “associates of associates.”
The debate has been driven by the emergence of groups in North Africa and the Middle East that may embrace aspects of al-Qaeda’s agenda but have no meaningful ties to its crumbling leadership base in Pakistan. Among them are the al-Nusra Front in Syria and Ansar al-Sharia, which was linked to the September attack on a U.S. diplomatic post in Benghazi, Libya. They could be exposed to drone strikes and kill-or-capture missions involving U.S. troops.
Officials said they have not ruled out seeking an updated authorization from Congress or relying on the president’s constitutional powers to protect the country. But they said those are unappealing alternatives.
AUMF and the war on terror
The debate comes as the administration seeks to turn counterterrorism policies adopted as emergency measures after the 2001 attacks into more permanent procedures that can sustain the campaign against al-Qaeda and its affiliates, as well as other current and future threats.
The AUMF, as the 2001 measure is known, has been so central to U.S. efforts that counterterrorism officials said deliberations over whom to put on the list for drone strikes routinely start with the question of whether a proposed target is “AUMF-able.”
The outcome of the debate could determine when and how the war on terrorism — at least as defined by Congress after the Sept. 11 attacks — comes to a close.
“You can’t end the war if you keep adding people to the enemy who are not actually part of the original enemy,” said a person who participated in the administration’s deliberations on the issue.
Administration officials acknowledged that they could be forced to seek new legal cover if the president decides that strikes are necessary against nascent groups that don’t have direct al-Qaeda links. Some outside legal experts said that step is all but inevitable because the authorization has already been stretched to the limit of its intended scope.
“The AUMF is becoming increasingly obsolete because the groups that are threatening us are harder and harder to tie to the original A.Q. organization,” said Jack Goldsmith, an expert on national security law at Harvard University and a former senior Justice Department official.
He said extending the AUMF to groups more loosely tied to al-Qaeda would be “a major interpretive leap” that could eliminate the need for a link between the targeted organization and core al-Qaeda.
The United States has not launched strikes against any of the new groups, and U.S. officials have not indicated that there is any immediate plan to do so. In Libya, for example, the United States has sought to work with the new government to apprehend suspects in the Benghazi attack.
Still, the administration has taken recent steps — including building a drone base in the African country of Niger — that have moved the United States closer to being able to launch lethal strikes if regional allies are unable to contain emerging threats.
The administration official cited Ansar al-Sharia as an example of the “conundrum” that counterterrorism officials face.