Ending the 'Drone War' or Expanding It? Assessing the Legal Authority for Continued U.S. Operations Against Al-Qa'ida after Afghanistan
33 Pages Posted: 7 May 2015 Last revised: 4 Aug 2015
Date Written: February 1, 2015
The Obama Administration has long struggled with an inherent contradiction at the core of its national security and defense policy. On the one hand, the Administration has always aspired to bring an end to America’s post-9/11 armed conflicts. And yet, the Obama Administration “surged” in Afghanistan, dramatically escalated the “drone war” in Pakistan and Yemen, and used force in Libya against the Qaddafi regime. Most recently, the Obama Administration began a new campaign in Iraq and Syria against the Islamic State in the Levant (ISIL), apparently as an extension of the war against al-Qa’ida. While aiming to end America’s wars, the Obama Administration has during its time in office in fact increased the number and expanded the scope of armed conflicts to which the United States is or has been a party. Some of these wars have now ended, but an end to the broader war with al-Qa’ida will likely be more difficult to identify, let alone complete.
The United States’ war with al-Qa’ida began in Afghanistan and has long been understood to have Afghanistan as its center of hostilities. Yet there is uncertainty as to whether the war against al-Qa’ida must end when the conventional war in Afghanistan concludes. Indeed, if the United States adopts a new AUMF for the war against ISIL, thereby eliminating for that separate conflict the strained dependence for authority on the 2001 AUMF, the war against al-Qa’ida could fall away with the end of the Afghanistan conflict without affecting ongoing operations against ISIL in Iraq and Syria. In addition, the Administration could further its claim that ISIL is the “true successor” of the group that perpetrated the attacks of 9/11 by dropping its armed conflict with al-Qa’ida completely and focusing its efforts on ISIL.
Either way, if the United States withdraws from Afghanistan in 2016, as President Obama has pledged it will, there is a legitimate question as to whether the United States may lawfully continue its war against al-Qa’ida, or whether the war against al-Qa’ida, always a contested concept in and of itself, is inexorably tied to the war in Afghanistan. And if a conflict against al-Qa’ida may continue after the close of the conventional conflict in Afghanistan, questions remain regarding whether al-Qa’ida’s affiliates, associated forces, and “successors” may be part of the continuing conflict and where that conflict may take place. The answers to these questions are fraught with significant operational effects – consider, for example, the effects on detention authority at Guantanamo Bay (GTMO) or drone strikes in Pakistan or Yemen – each based on the existence of an armed conflict with al-Qa’ida and conducted under the law of war. This article addresses each of these issues in turn.
Keywords: AUMF, Afghanistan, U.S. Military, al-Qa'ida, Drones, ISIS, ISIL, Counterterrorism, Terrorism, Law of War, Law of Armed Conflict
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