by Jennifer Daskal, Assistant Professor, American University Washington College of Law
Twelve years ago, as the nation was reeling from the worst terrorist attack in its history, Congress authorized the president to use “all necessary and appropriate force” against those that “planned, authorized, committed, or aided” the September 11th attacks.” Notably, Congress refused the Bush administration’s much broader proposal to authorize the use of force to “deter and pre-empt any future acts of terrorism or aggression against the United States.” Thus, even as the nation was reeling from the worst terrorist attack in its history, Congress rejected a broad-scale “war on terrorism,” and instead passed a relatively limited force authorization against those responsible for the September 11th attacks, for the express purpose of “prevent[ing] any future acts of international terrorism against the United States by such nations, organizations or persons.”
Over time, however, the authorization (the “AUMF”) has been augmented by interpretive gloss. Both the Bush and Obama administrations – with subsequent ratification by Congress with respect to detention – have defined the AUMF to cover the use of force against not just al Qaeda and the Taliban as the groups directly responsible for Sept. 11, but their “associated forces” as well. This interpretation provides the green light for hundreds of lethal operations in Yemen and Somalia directed at members of al-Qaeda in the Arabian Peninsula and al-Qaeda associated elements of al Shabaab. Some have suggested that members of al Qaeda in the Islamic Maghreb (operating in Mali) and the al-Nusra Front (operating in Syria) should be – or already are – covered by the 2001 AUMF and are therefore legitimate targets as well. To add to the confusion, the Obama administration refuses to publicly state which groups fall within the scope of “associated forces,” thereby raising fears of an ever-expanding war against an ever-expanding enemy based on an ever-expanding interpretation of the AUMF.