Air Force General Counsel Blog The chief legal officer and chief ethics official of the Department of the Air Force

18Jan/130

Legal Issues in Mali

Robert Chesney offers a very detailed and thoughtful analysis of the legal issues involved in the conflict in Mali on Lawfare that considers both international law and domestic law.  One of the more interesting part of the analysis is whether the U.S. assistance to France could be justified under Article II powers or the AUMF:

The situation of course calls to mind the much-criticized 2011 intervention in Libya, which similarly involved a lead role played by other nations. But the Libya intervention also involved direct uses of force by U.S. assets, including airstrikes from manned and unmanned aircraft.  That’s an important distinction, and though it does not cinch the case it certainly makes the Mali scenario less problematic.  That said, what is the affirmative argument for such authority residing within Article II?  The baseline authority of the Commander-in-Chief to make routine deployment decisions is not enough given the circumstances of armed conflict in Mali (I do think it perfectly clear that a NIAC is underway in Mali).  The foreign affairs power of the President is more pertinent, I think, given the very limited nature of the military’s role here (see the argument above about distinguishing this case from the somewhat similar Libyan scenario in which such an argument was stretched quite far).  Some would argue that in any event the President has Article II power to direct the military into all sorts of small-scale operations of this kind (and some would go further still).  Such claims famously spark fierce controversy, but we can at least say that this instance is on the low-intensity end of the spectrum and hence relatively-more plausible.  It is to me, at any rate.

And then, of course, there is the question of whether France’s action (and hence our support for it) ties in meaningfully with the view that the United States is already in an armed conflict with al Qaeda and its associated forces.  This is a complicated topic, one I’m not going to try to nail down here.  If the answer is yes, then not only might one argue that this bolsters the case for invoking the president’s national self-defense authorities, but it also implicates the 2001 AUMF relating to al Qaeda, thus potentially skipping us past the Article II power question.  But is this fact pattern tied-in in that manner?  There are multiple jihadist groups in northern Mali, with varied links to AQIM. (See here for one discussion) Even as to AQIM itself, there are complex questions as to how to think about it.  Is it part-and-parcel of al Qaeda, an associated force of al Qaeda, or merely co-branded but ultimately distinct?

Complicating matters, Deborah Pearlstein argues that even if we were just talking about AQIM proper, it would still need to be shown, in order to invoke the AUMF, that AQIM had not merely associated itself with al Qaeda but also that it posed a threat to the United States as such (akin to AQAP, which has repeatedly attempted to carry out attacks on Americans).  Even if we accept that standard as the measure of what the executive branch likes to call “co-belligerency” in this setting, however, I’m not sure this is a major obstacle.  It turns on what we think must be demonstrated in order to be able to say that a group has sufficiently targeted the United States in order to qualify under this heading.  As to that, it does not seem to me that the standard ought to be whether the group in question has yet attempted to carry out an attack within or directed at the American homeland.  If the group has attempted or wishes to attack Americans abroad, this ought to suffice.  SecDef Panetta has stated that “while they may not have any immediate plans for attacks [in] the United States and in Europe, ultimately that remains their objective.”  Not having a good reason to doubt that this is so, I think a strong argument therefore can be made that the AUMF extends to AQIM today.  That said, I want to underscore again how murkey and fact-dependent this entire inquiry is, and how much it underlines the desirability of careful thinking about the statutory foundation of current and future counterterrorism activities.

You can read the full post here (and you ought to).  An earlier analysis by Deborah Pearlstein is here.  What do you think?

Charles A. Blanchard
General Counsel
United States Air Force