This is one of those problems of war for which there are no “good” solutions, only bad ones that might meet one priority better than another.
One of the less-noticed points to emerge from the declassified Benghazi transcripts was highlighted by The Hill today: the military can’t just go after the Benghazi attackers using lethal force, if the attackers’ organizations haven’t been officially designated as affiliates of al-Qaeda. That, at least, is the interpretation General Martin Dempsey told representatives the military is operating on.
Some of the organizations identified in the Senate report on Benghazi are officially considered to be al Qaeda affiliates, including al-Qaeda in the Arabian Peninsula (AQAP) and al-Qaeda in the Islamic Maghreb (AQIM). But the status of Ansar al-Sharia and the Mohammed Jamal network is murkier. Their leaders have extensive connections to al-Qaeda personalities, but it is not clear that the U.S. considers them official affiliates of al-Qaeda. (In fact, Ansar al-Sharia was only put on the State Department’s list of Foreign Terrorist Organizations on 13 January 2014, three days ago.) The UN lists the Mohammed Jamal network as an affiliate of al-Qaeda, on the al-Qaeda sanctions list, but that doesn’t necessarily meet the U.S. requirement for mounting military action against Mohammed Jamal.
This matters because of how the Congressional “authorization to use military force” (AUMF) was crafted for the Global War on Terror in 2001. It’s still the basis for our use of military force in foreign anti-terror operations today. And the AUMF from 2001 conceived of our war as being against al-Qaeda. Use of drones, invoking the law of armed conflict, deploying military force, lethal and non-lethal military means – all map back to the 2001 AUMF, by which the enemy and target of military force was identified as al-Qaeda.
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In the years since, the executive has held “affiliates of al-Qaeda” to be included in that designation. But there is a whole cottage industry out there dedicated to debating whether the 2001 AUMF extends further than that. (The articles here and here make a good start. The best treatment I found is this lengthy one by the second author, Robert Chesney.)
The debate up to now has centered mainly on two concerns: the legal issues surrounding the use of drones, and the potential for U.S. military operations in North Africa. Even in the aftermath of Benghazi, the issue didn’t come up much in public; the rationale was generally accepted – by Congress, the media, and the public – that the way to respond to Benghazi was to send civilian law-enforcement operatives and make arrests. (The arrests haven’t happened either, of course.)
That in itself is interesting. There’s no good reason I can think of to not pursue the Benghazi attackers in the same way bin Laden and other terrorists have been pursued in South Asia and the Arabian Peninsula. There has been no groundswell of advocacy for doing that, however.
General Dempsey’s House testimony highlights a certain sclerosis that seems to be setting in with the War on Terror. I’ve never been an advocate of expanding drone use, and I certainly don’t want to see Obama assuming more authority for himself. I don’t necessarily see a good ending in sight, if Congress decides the 2001 AUMF needs revisiting (or if the Obama administration does, for that matter). It sounds like something no one wants to dig into. It could be awfully messy, and it’s not clear that forcing a debate on it now is a good idea.
But neither does it make sense for us to find ourselves restricted unnaturally, for no good reason, in dealing with terrorist attacks abroad. One obvious point is that it is a downright silly restriction, when our national facilities have been attacked, for our potential response forces to have to check a list and see if the attacker was on it. This point highlights the dysfunction inherent in insisting on particular forms of “al-Qaeda affiliation” in order to act.
But another point is that when we have been attacked, it’s not clear that a president needs to invoke the 2001 AUMF in order to have authority to pursue the attackers with force. Pursuing them in the aftermath of an attack on Americans is different from pursuing them preemptively, or – on the quasi-law-enforcement model – punitively.
We’re sort of in a Catch-22 on this: we might think a president should see his responsibility and authority as both pointing him to a more active, even lethal response. But we don’t trust this president with that latitude, in interpreting his executive authority.