President Barack Obama used his prime-time address Wednesday night to announce that the United States will expand its airstrikes against the militant group known as the Islamic State in Iraq and Greater Syria (ISIS), while also preparing to move into Syria to do so as well. When American forces begin carrying out this new strategy, however, they will be doing so while relying on a nearly thirteen-year old document as the basis for its domestic legal authority.
This became clear when a senior administration official told reporters last night ahead of Obama’s address “we do not believe the President needs that new authorization” to wage a lengthy campaign against ISIS. “We believe that he can rely on the 2001 AUMF as statutory authority for the military airstrike operations he is directing against ISIL,” the official continued, using the government’s preferred acronym for the group. “And we believe that he has the authority to continue these operations beyond 60 days, consistent with the War Powers Resolution, because the operations are authorized by a statute.”
That determination came as a surprise to many, based on the complicated relationship between al Qaeda, the original target of the AUMF, and ISIS. Passed to allow President George W. Bush to go after both al Qaeda and the Taliban who hosted it, the 2001 AUMF was written in an extremely broad fashion to allow the executive branch to target anyone associated with the 9/11 attack. Since then, it has been used as the justification not just for the war in Afghanistan to topple the Taliban, but also to strike out at al-Qaeda and “associated groups” in such countries as Pakistan, Somalia, and Yemen.
Under the logic applied by the White House, the fact that matters most is that ISIS began its life as Al Qaeda in Iraq (AQI), the branch set up following the 2003 U.S.-led invasion. While the groups prospects waned for a time, the war across the border in Syria gave the organization new life as it took advantage of the chaos to regroup, recruit, and reorient itself. Currently ISIS is listed on the State Department’s Foreign Terrorist Organization list as the “Islamic State of Iraq and the Levant (formerly al-Qa’ida in Iraq),” with the site clearly saying that the group had been on the list since 2004.
As a different senior administration official explained to the Guardian, the determination was based on the group’s “longstanding relationship with al-Qa’ida (AQ) and Usama bin Laden.” The fact that the U.S. fought against ISIS when it was still AQI, that the group still wants to conduct attacks against “U.S. persons and interests” and ISIS’ belief that it’s the real successor to Osama bin Laden’s legacy, the official argued, means “the President may rely on the 2001 AUMF as statutory authority for the use of force against Isil.” As recently as earlier this year, however, the Obama administration was attempting to narrow the scope of the AUMF, or at least prevent it from expanding, acting on a promise the president made in a speech in 2013 to “revise and eventually repeal” the law.
It isn’t just the White House that’s using that formulation. In prosecuting a case against a Colorado teenager for providing material support to a terrorist organization, the Department of Justice said that the suspect stood accused of conspiring to “provide and attempt to provide material support and resources to a designated foreign terrorist organization, specifically Al-Qaeda (AQ) and its affiliates, including Al-Qaeda in Iraq (AQI).”
But labeling ISIS as an affiliate of al Qaeda requires a huge stretch for one reason: the two are no longer associated. In fact, they’re openly fighting against each other. In February, al-Qaeda leader Ayman al-Zawahiri officially disavowed ISIS after a split between the head of the Iraqi group and Jabhat al-Nusra, al-Qaeda’s preferred jihadi group in Syria. ISIS “is not a branch of the al-Qaeda group . . . does not have an organizational relationship with it and [al-Qaeda] is not the group responsible for their actions,” al-Qaeda’s General Command said in a statement at the time.
“On its face this is an implausible argument because the 2001 AUMF requires a nexus to al Qaeda or associated forces of al Qaeda fighting the United States,” Robert Chesney, a professor at the University of Texas School of Law, told the Daily Beast. “Since ISIS broke up with al Qaeda it’s hard to make that argument.” Chesney went on to ask in an article at Lawfare if later the argument that ISIS as a successor force to al-Qaeda will be expanded to the point that “we later hear of the AUMF applying to associated forces of this successor force? It is not hard to imagine many of them popping up the Iraqi-Syrian theater.”
Despite the weaknesses in the administration’s argument, Congress doesn’t look ready to put up much of a fight over it. An outpouring of support from Congress accompanied Obama’s address, which also asked legislators to approve $500 million in additional funding and explicit permission for the Pentagon to train and equip Syria’s moderate rebels, but few insisted that a new authorization be drafted. And when Obama met with Congressional leaders on Tuesday and told them he already had the authority to act in Syria, there are no reports of any of them arguing with him. “I think the real issue is scope,” one Congressional aide previously told ThinkProgress to explain Congress’ hesitancy. “While some members are concerned about giving the President too much power, others are worried about not addressing the full scope of the problem. Under Article II, it appears that the President has the authority to act, at least in the short-term, and so we are not likely to see congressional action before the elections.”