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Back to Lethal Force in Somalia: What If Anything Does the Drone Strike on Ibrahim Ali Signify?

Robert Chesney
Thursday, October 31, 2013, 5:38 PM
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When U.S. Navy SEALs attempted the capture of an al Shabab figure in Somalia earlier this month, contemporaneous with the successful capture of an al Qaeda target in Libya, it generated a considerable amount of coverage and discussion, including speculation about what this might signify regarding the administration's position on the use of lethal force outside of the Af-Pak region.  Interestingly, far less attention has been paid to the fact that, three weeks later, the United States carried out an old-fashioned drone strike on a separate al Shabab figure in Somalia.
That this drone strike has not sparked conversation comparable to the capture operations from three weeks earlier perhaps is not surprising.   The attack left us with no detainee in our custody, and thus no constant questions about what will happen to him next-- no constant nudge to discuss the scope of the AUMF and so forth.  But the episode certainly is interesting from exactly that perspective.
Here is what we know, or rather what we can glean based on the public record: On Monday the 28th, an al Shabab bombmaker named Ibrahim Ali (aka Anta Anta) was in a vehicle along with at least one other person, traveling toward the town of Baraawe (where the SEAL raid took place several weeks back).  The vehicle was destroyed by a missile, and at least two bodies were removed by Shabab fighters afterward.  An unnamed U.S. military official later stated that the strike did kill Ibrahim Ali, and was a U.S. military operation.
Does this signify a change in administration policy with respect to the scope of authority it claims to possess under the 2001 AUMF?  We don't have enough information to answer that question, but it is certainly an important one.  To the best of my knowledge, the administration has not yet taken the position that al Shabab collectively constitutes an "associated force" of al Qaeda that is engaged in hostilities against the United States or its allies, bringing it within the scope of the AUMF.  When we have used force in Somalia--as with the JSOC raid that killed Saleh Ali Saleh Nabhan a few years ago, or the attempt to capture Ikrimah earlier this month--there has always been an argument that the target was not just an al Shabab member but also a member of al Qaeda itself.  So far, I've not seen that claim made as to Ibrahim Ali, though it quite possible that this is indeed the claim (or, for that matter, that the claim has been made and I've just missed it).
At any rate, the important point is that this attack should be understood as consistent with the status quo if that was indeed the underlying legal theory.  But if that was not the theory, then the question arises whether the administration has decided to treat al Shabab (or at least the wing of al Shabab that appears increasingly focused on extraterritorial operations in east Africa) as having at last become an associated force on a group basis, or whether the action instead rested on an Article II foundation involving the need to intervene to prevent regional destabilization as al Shabab turns its attentions to attacks on its neighbors).  The Times article, notably, hints that JSOC has been pressing for permission to take on al Shabab in its own right rather than simply in the limited cases where an al Shabab figure happens also to be an al Qaeda member:
Even as commanders at the Joint Special Operations Command pushed this year for permission to begin operations intended to capture or kill Shabab’s leaders, their views were mostly marginalized as the White House pursued a strategy of using African troops to fight the Shabab in Somalia.
That push could have rested on either an AUMF theory or an Article II theory, of course, or perhaps no legal theory at all.  And there is, to repeat, no strong reason to believe that a green light has been given for operations targeting al Shabab leaders not directly linked to al Qaeda.  Of course, even if this was a linked-to-al-Qaeda scenario as with Saleh Ali Saleh Nabhan, there is still the question of just what metrics are being used to determine when an individual like Ibrahim Ali has crossed that line.  Anyway, these are important questions that I hope journalists (and policymakers, and legislators) are asking.

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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