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On Friday, April 11, Stephen W. Preston, General Counsel, U.S. Department of Defense, delivered a keynote speech entitled “The Legal Framework for the United States’ Use of Military Force since 9/11.”
The speech examined four topics: (1) the legal framework for U.S. use of military force post- 9/11; (2) the legal basis for current operations against the so-called Islamic State of Iraq and the Levant, or ISIL; (3) the end of the U.S. combat mission in Afghanistan and its impact; and (4) the legal framework for counter-terrorism operations in the future.
First, as to the legal framework for U.S. use of force post-9/11, Preston explained that, domestically, the 2001 AUMF (Authorization for the Use of Military Force) provided the statutory authority to respond to the 9/11 attacks against Al Qaeda and those who supported Al Qaeda, including the Taliban. The United States also invoked its right of self-defense, notifying the UN Security Council, consistent with Article 51 of the UN Charter. Preston explained that U.S. detentions were also conducted “as an aspect of [the President’s] authority to use force” under the 2001 AUMF, and that the laws on international armed-conflict informed U.S. detention practices.
Preston previously stated in May 2014, during a public hearing before the Senate Foreign Relations Committee, which groups the United States was taking “direct action” against under the 2001 AUMF: Al Qaeda, the Taliban and certain other terrorist or insurgent groups in Afghanistan, Al Qaeda in the Arabian Peninsula (AQAP) in Yemen, and individuals part of Al Qaeda in Somalia and Libya. Over the past year, the United States has also “conducted military operations under the 2001 AUMF” against the Nusrah Front, and, specifically, members of Al Qaeda referred to as the Khorasan Group in Syria, and Al Qaeda in Iraq (now known as ISIL).
Second, as to the legal basis for current operations against ISIL, Preston provided background on the group and its split from Al Qaeda, and stated that “ISIL continues to wage the conflict against the United States that it entered into when, in 2004, it joined bin Laden’s al-Qa’ida . . . .” He stated that the President in conducting operations against ISIL is covered by the 2001 AUMF, and not “divested” of authority by “disagreements” between Al Qaeda and ISIL. He noted that the 2002 Iraq AUMF also covers terrorist threats in Iraq and thus “the 2002 AUMF authorizes military operations against ISIL in Iraq and, to the extent necessary to achieve these purposes, in Syria.” As to the international legal foundation, Preston stated that the United States has acted with the consent of the Government of Iraq, in the collective self-defense of Iraq, and in U.S. national self-defense, consistent with article 51 of the UN Charter. “Under international law, states may defend themselves, in accordance with the inherent right of individual and collective self-defense, when they face armed attacks or the imminent threat of armed attacks and the use of force is necessary because the government of the state where the threat is located is unwilling or unable to prevent the use of its territory for such attacks.”
Third, as to the end of the US combat mission in Afghanistan and its impact, he noted it is “highly unlikely” that there will be a peace agreement to formally end the conflict. He stated that “where the armed conflict remains ongoing and active hostilities have not ceased, it is clear that congressional authorization to detain and use military force under the 2001 AUFM continues.” While at the end of 2014, U.S. troop presence drew down to roughly 10,000, “active hostilities continue”—there are still “substantial” military forces present, “Afghanistan remains a dangerous place,” the Taliban are still threatening, and “significant armed violence continues.” He explained that the U.S. mission consists of two components; (1) helping NATO in non-combat missions to train, advise, and assist the Afghan National Security Forces, and (2) counter-terrorism activity that targets remnants of Al Qaeda. “With respect to the Taliban, U.S. forces will take appropriate measures against Taliban members who directly threaten U.S. and coalition forces in Afghanistan, or provide direct support to al-Qa’ida.” He noted that Al Qaeda, while degraded, has not yet been effectively destroyed and that Al Qaeda and its adherents, inkling AQAP, still pose “a real and profound threat to US national security.” Therefore “active hostilities” will continue in Afghanistan and elsewhere “through 2015 and perhaps beyond,” with the 2001 AUMF still providing the domestic legal authority for these operations.
Fourth, as to the legal framework for further counter-terrorism operations, he stated that while the President hopes to refine and ultimately repeal the 2001 AUMF “to better fit the current fight,” and obtain an ISIL-specific AUMF, the 2001 and 2002 AUMFs continue to “authorize the current military operations against ISIL.” He argued that the President’s proposed new AUMF would show appropriate “resolve to degrade and defeat ISIL.” He reaffirmed that the United States “will not deploy U.S. forces to engage in long-term, large-scale ground combat operations like those . . . conducted in Iraq and Afghanistan.” He stated that the United States “remains committed to act in accordance with our international obligations” and that “military operations are being carried out in accordance with the law of armed conflict.” He also stated that the US is committed to “transparency” as it is “sound policy and just plain good government.”
This is not intended as a verbatim transcription of Mr. Preston’s full remarks, which can be found at http://www.defense.gov/Speeches/Speech.aspx?SpeechID=1931.
Jennifer Trahan, Associate Professor of Global Affairs, NYU-SPS.