Armed Conflict Executive Branch Foreign Relations & International Law

Annals of the Trump Administration #7 (Prequel Edition): Shaping the War Obama Will Leave to Trump

Robert Chesney
Monday, November 28, 2016, 1:35 PM

With less than two months to go before it hands over power to the Trump administration, the Obama administration is continuing to fine-tune the legal, policy, and institutional architectures that guide its approach to the ongoing conflict with al Qaeda. Under that heading, I want to flag some important recent developments.

1. AUMF expansion: al Shabaab is now a full-fledged "associated force"

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With less than two months to go before it hands over power to the Trump administration, the Obama administration is continuing to fine-tune the legal, policy, and institutional architectures that guide its approach to the ongoing conflict with al Qaeda. Under that heading, I want to flag some important recent developments.

1. AUMF expansion: al Shabaab is now a full-fledged "associated force"

That's the news in a story this morning in the New York Times (jointly reported by Charlie Strong, Eric Schmitt, and Mark Mazzetti).

How is this different from the past? The United States has, after all, been using force episodically in Somalia against al Shabaab targets for a very long time. In the past, though, the government has always argued in such cases either that the particular target was individually within the scope of the 2001 AUMF due to his personal ties to al Qaeda (independent of his al Shabaab membership) or else that the target in any event constituted an imminent threat to U.S. or allied forces in Somalia and thus implicating either Article II self-defense authority or else some version of that authority embedded implicitly within the AUMF (n.b., be careful with that word "imminent"...when the government uses it in this context, it's meaning is closer to "continuing" or "constant" rather than literal imminence). Now it is unnecessary, from a domestic law perspective, to bother with either argument.

Does that mean the U.S. government will now start attacking all al Shabaab members? Probably not. The article emphasizes a critical point: the Obama administration continues to take the position that Somalia is not a zone of active hostilities and, hence, the administration's "policy guidance" limiting the use of force in such locations continues to apply. Under that policy constraint, force is supposed to be used only when there is an imminent (cf. the note above on what that means) threat to U.S. lives, almost no risk of civilian casualties, no feasible arrest option, and so forth. And, thus, the "associated force" determination in theory should not change anything.

So why bother? Good question! The Times story says there is no apparent factual change that drove this decision. My reading of the piece is that it was more a matter of house-cleaning prior to the transition. Perhaps it is a matter of believing this is a more honest account of the best domestic law explanation for current practices. Perhaps it is a matter of wanting to move as far away as possible from Article II arguments before the Trump team takes power, in hopes that he will at least be stuck with whatever boundaries can be said to flow from the AUMF. It's also possible that the Obama team anticipated this change would happen under Trump, and wanted to prevent Trump from touting such a change as "fixing" a weak Obama administration approach. Perhaps it was a mix of all these things.

What will happen next in Somalia? The real constraint on the use of force in Somalia arguably is scarcity of actionable intelligence combined with scarcity of weapon platforms capable of acting quickly on such intelligence. That may or may not change under Trump. That said, I think it overwhelmingly likely that Trump will ditch the presidential policy guidance noted above, and hence you will see the occasional airstrike in Somalia that appears to take full advantage of the scope of targeting authority the U.S. government claims under both LOAC and the AUMF (i.e., by attacking lower-level Shabaab fighters without a claim of imminent threat to U.S. lives, and perhaps with acknowledgment that collateral damage was expected).

If there are other additions to the list of associated forces under the AUMF, will we (the public) know? Not necessarily, barring more good journalism such as the Times story. Several of us on this site have been arguing for years that the AUMF should be amended to include, among other things, some form of public-reporting mechanism on this matter. I'm more skeptical than ever that we will see that happen anytime soon. And thus one important but hard-to-resolve question in the years to come will be: Has the Trump administration added to the list of associated forces without the public knowing?

2. Expanded targeting rules for al Qaeda in Syria?

A few weeks ago, Adam Entous at the Washington Post reported an important change to policies that previously constrained targeting of al Qaeda's franchise in Syria (formerly known as Jabhat al Nusra, though the group is now trying to obscure its links to AQ).

Is this about the Presidential Policy Guidance? No, because the PPG is about areas that are not zones of active hostilities, and Syria is definitely a zone of active hostilities. Instead, this is about a Syria-specific policy pursuant to which—it appears—the military was constrained to target only al Nusra figures associated with external plotting or who had substantial prior ties to al Qaeda (rather like the approach also previously taken with al Shabaab in Somalia). The idea, it seems, was to preserve resources for the fight against the Islamic State, and at the same time not to unduly undermine the position of one of the most important anti-Assad armed groups.

What has changed? Now, we are told, policy constraints along those linese have been lifted, and new resources for collecting actionable intelligence provided too, so Joint Special Operations Command (JSOC) may go after al Nusra on a wider basis.

Why now? As Entous explained, the handwriting is on the wall: we are not going to be able to topple the Assad regime, and with Trump taking power we probably will soon have a quite different approach that focuses entirely on cooperation with Russia (and perhaps even Assad) with respect to counterterrorism. Even more so than was the case with al Shabaab, there seems little doubt that any constraints on targeting al Nusra were soon to be lifted anyway. In addition, Entous reports that the Intelligence Community in recent months had begun emphasizing the dangers of a Nursa-controlled safe haven in Syria, and that President Obama grew increasingly concerned about it as a result of those briefings. This passage from the article says it all:

U.S. officials who opposed the decision to go after al-Nusra’s wider leadership warned that the United States would effectively be doing the Assad government's bidding by weakening a group on the front line of the counter-
Assad fight. The strikes, these officials warned, could backfire on the United States by bolstering the group’s standing, helping it attract more recruits and resources.

Officials who supported the shift said the Obama administration could no longer tolerate what one of them described as “a deal with the devil,” whereby the United States largely held its fire against al-Nusra because the group was popular with Syrians in rebel-controlled areas and furthered the U.S. goal of putting military pressure on Assad.

3. Empowering SOCOM and JSOC to operate independent of regional COCOMs

Finally, we have Thomas Gibbons-Neff and Dan Lamothe in the Washington Post explaining an important institutional twist on all these developments: It seems that the Obama administration also has just taken steps to enable JSOC, under Special Operations Command (SOCOM) guidance, to conduct counterterrorism missions with much greater independence from regional combatant commands (COCOMs) such as Central Command (CENTCOM).

Why does this matter? It is possible this move will tend to reduce the number of cases in which a particular counterterrorism operation is scotched because of competing regional security considerations or other priorities that matter for the regional COCOM more than they would for JSOC/SOCOM. It also is possible (and this was a major theme in the story) that this centralization of authority will result in more efficient and effective integration of intelligence and action both within the SOF community and between that community and CIA, and hence more effective (and more numerous?) operations to kill or capture terrorism targets, under color of the AUMF or otherwise.

You said capture...we don't do that anymore, do we? Prediction: This will change in 2017.

Robert (Bobby) Chesney is the Dean of the University of Texas School of Law, where he also holds the James A. Baker III Chair in the Rule of Law and World Affairs at UT. He is known internationally for his scholarship relating both to cybersecurity and national security. He is a co-founder of Lawfare, the nation’s leading online source for analysis of national security legal issues, and he co-hosts the popular show The National Security Law Podcast.

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