Dhimmitude, ISIS and the AUMF - Part 1
This story, Times of Israel, Syrian Christians sign treaty of submission to Islamists - Threatened by al-Qaeda-affiliated extremists, community in northern city of Raqqa chooses ‘dhimmitude’ over conversion or death (by Elhanan Miller, February 27, 2014); and Haaretz, Under threat, Syria's Christians sign accord with Islamists - While Christians opt for a medieval-style 'protection agreement' and tax over conversion or death, Assad bolsters standing as the preferred option in Syria (by Zvi Bar'el, 3 Mar 2014).
http://cdn.timesofisrael.com/uploads...48-635x357.jpg
Quote:
This undated file image posted on a militant website on Tuesday, Jan. 14, 2014 shows fighters from the al-Qaeda linked Islamic State of Iraq and the Levant (ISIS) marching in Raqqa [JMM:
Raqqa Wiki], Syria (photo credit: AP).
has been gaining traction over the last week or so. That being said, my purpose here is not to launch into a discussion of Raqqa's military history (an interesting subject), dhimmitude under Sharia law (a subject of interest to comparative lawyers), or of the ISIS troopers' marching style.
Instead, I'd like to discuss one apparent legal implication of Raqqa to larger issues in US foreign policy (one global, one Syrian in scope), which arose out of the events briefly described in these snips from the "dhimmitude" articles:
Quote:
Times: Earlier this month, al-Qaeda’s central command distanced itself from ISIS, saying it was “not a branch of al-Qaeda.”
Haaretz: The response from rival groups has not been long in coming. Al-Nusra Front, led by Abu Mohammed al-Joulani, issued an ultimatum to ISIS warning that if its people do not cease their attacks on the front, and if they don't sign a reconciliation agreement, they are in for “a dreadful battle.”
Al-Nusra became Al-Qaida’s official representative in Syria after ISIS leader Abu Bakr al-Baghdadi defied an order by Al-Qaida chief Ayman al-Zawahiri to dismantle the front's forces in Syria and go back to fighting in Iraq. This blatant defiance led Al-Zawahiri to openly disavow ISIS, but this does not seem to have impressed the ISIS leader much, as he continues to spearhead an independent front within Syria.
It was Al-Bahgdadi's forces, in fact, who assassinated Abu Khalid al-Suri, a close friend of Osama bin Laden and a top Al-Qaida official, who worked alongside Al-Joulani. Friendship with Bin Laden is no longer a reliable insurance policy, apparently.
The power struggles between the two radical groups that have seized partial control of some Syrian towns and villages is forcing the Free Syrian Army to take a stand. The paradoxical result is that the Al-Qaida stand-in – Al-Nusra – is now considered a more desirable ally of the rebels than ISIS because it relies largely on Syrian support, while ISIS has recruited many volunteers from Arab and Western countries.
That story has also been discussed in posts above (primarily by Crowbat), which obviously have military and political implications.
Lawfare's Jack Goldsmith has been following the legal implications of the AQ-Base and ISIS rupture, in two pieces. The first, The ISIS Expulsion and the AUMF (by Jack Goldsmith, February 11, 2014), deals with the "reported fact" that the Obama administration considered the US to be at war with ISIS, and with al-Nusar in an earlier admission:
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Karen DeYoung and Greg Miller report in the WP [
Al-Qaeda’s expulsion of Islamist group in Syria prompts U.S. debate] that Al-Qaeda’s recent expulsion of the Islamic State of Iraq and Syria (ISIS) has raised questions about whether the AUMF “still applies” to ISIS. “According to some administration lawyers and intelligence officials,” they report, “the expulsion of ISIS removes the group from the short list of al-Qaeda ‘associates’ that the president has virtually unlimited powers to strike under a law passed days after the Sept. 11, 2001, terrorist attacks.”
These statements imply that the administration had determined, prior to the ISIS expulsion, that the AUMF authorized the President to use force against this group that operates in Syria. That is news to me, and it highlights the non-transparent method by which the Executive determines with whom we are at war.
Does Congress know that the Executive branch had determined that the AUMF authorized force against ISIS? Did the Senate Arms Services Committee know? (
When DOD officials suggested at a SASC hearing last May that the AUMF authorized force against the Nusra Front in Syria, many Senators on the SASC expressed surprise.)
The WP article claims the WH's targeted group list is now down to four AQ "affiliates" (obviously not including Astan and Pstan):
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The unofficial list of al-Qaeda affiliates is now down to four: the powerful offshoots in Yemen and North Africa, Somalia-based al-Shabab, and Jabhat al-Nusra, an ISIS rival within the Syrian opposition to President Bashar al#-Assad.
All of this goes to Jack's main point:
Quote:
The main point of the story is the increasing fragility of the AUMF. Zawahiri’s expulsion of ISIS, by calling into question its status as an AQ associate, makes it more difficult as a legal matter for the USG to use force against ISIS. DeYoung and Miller report that some in the administration “think ISIS can still be targeted because of its long-standing al-Qaeda ties and parallel ambitions.”
But this would probably be stretching the AUMF too far, leaving the President either to act under Article II if ISIS presented a serious threat, or not act at all. In that connection, DeYoung and Miller also report that “Obama remains leery of justifying drone strikes and other types of military action with constitutional powers he accused his predecessor, George W. Bush, of overusing” – namely, inherent Article II powers.
It has always puzzled me why President Obama is leery of using Article II in counterterrorism operations where U.S. safety and security are at stake, but not in humanitarian operations as in Libya and the threatened action in Syria.
Actually, I doubt that Jack is puzzled; he is well aware of the forceful advocacy of Susan Rice and Samantha Power when it comes to liberal-progressive humanitarian interventions.
At the time Jack wrote this, his concerns about the AUMF and Article II powers were theoretical. But, within two weeks, we got what seems a real world example.
- to be cont.-