On Saturday Bruce Ackerman of Yale Law School published this op-ed in the Washington Post on the CIA's reported request to employ signature strikes in Yemen.
The legal issues that Ackerman discusses are obviously beyond my training and expertise, but there are a couple of points where I think he is a bit off, which may have repercussions for his argument.
For instance, Ackerman writes: "Up to now, the CIA’s drone campaign in Yemen has kept close to the legal line by restricting strikes to terrorist leaders, like the American Anwar al-Awlaki. Such leaders may have had personal links to the original al-Qaeda group, based in South Asia, that targeted New York and Washington in 2001."
This isn't true. Awlaki - to the best of my knowledge - wasn't a member of al-Qaeda back in 2001. Indeed, I don't think anyone from the administration has ever argued he was. I'm also not sure that the Obama administration even used the AUMF from 2001 as the justification for its strike targeting Awlaki.
Now if Ackerman had been arguing this about the group's leader, Nasir al-Wihayshi, who was Osama bin Laden's personal secretary for roughly four years prior to 9/11 he would have been on solid ground. This, of course, brings us to a point I find myself consistently making when talking to people about AQAP: personalities and individuals matter.
Beside Wihayshi, there are several other members of AQAP who had ties or were members of al-Qaeda in 2001, including Said al-Shihri, the former Guantanamo Bay detainee, who is now the deputy commander as well as Qasim al-Raymi, the group's military commander.
But there are other individuals such as Ibrahim Asiri - one of AQAP's bomb makers - who was not a member of al-Qaeda in 2001. However, given his role in the Dec. 2009 and October 2010 attempts on the US, I don't think anyone is arguing the US can't target him.
But what about people like Fawzi al-Wajayhi, who was a member of al-Qaeda in 2001 but had no pre-knowledge of the attack and has since refused to participate in jihad in Yemen. Can he be targeted under the AUMF?
Or the individuals who are fighting against the Yemeni army in Abyan and Shabwa but haven't been involved in any plots against the US. Can they be targeted? Should they be targeted?
I also have doubts about another one of Ackerman's claims: "But al-Qaeda’s failure to replace bin Laden with a credible leadership structure underscores the fact that the Yemeni group is on its own."
Now, AQAP operates largely independently of Ayman al-Zawahiri but I think it is too much to say that the group is on its own. We don't know a lot about the secret communications between Wihayshi and Zawahiri - for obvious reasons - but I think it is safe to assume that there are some and and that Wihayshi listens to Zawahiri's guidance - although to what degree is debatable. But again, to say AQAP is completely "on its own" is, I think, overstating the case.
Finally, Ackerman concludes that: "The risk of attacks from Yemen may be real. But the 2001 resolution doesn’t provide the president with authority to respond to these threats without seeking further congressional consent."
"If the administration wishes to escalate the fight against terrorists in Yemen, it should return to Congress for express approval."
Again, I can't speak to the legal issues at play here, but one thing for policy makers to keep in mind is that there is the possibility that providing a separate Authorization for the Use of Military Force (AUMF) for Yemen could create currently unanticipated problems. For instance - and this was pointed out to me - AQAP could use any AUMF particular to Yemen to bolster its argument that Yemen is under western military attack and as such it is a legitimate theater of jihad and all Muslims are required to defend the country against an infidel army.
This is an argument AQAP has had difficulty making in recent years because A.) unlike Iraq and Afghanistan there has been no invasion and B.) because Salih was still nominally a Muslim.
But it is an argument the group continues to make in the hopes that more in Yemen will see it as a defensive jihad like the wars in Iraq and Afghanistan and such a view would then compel their participation.
It is difficult to say how much of an impact a new AUMF specifically for Yemen would have on AQAP's ability to recruit - I think absent ground troops the continued deaths of innocent women and children women and children would have more of an impact than a piece of paper, particularly since it is unclear to me - given the current rate of US strikes in Yemen - how much an AUMF would change the status quo.
None of this is to say that the Obama administration should not return to Congress for an AUMF for Yemen - that is a debate for legal scholars, but those debating this issue should be aware of some of the possible ramifications of their actions.
But in the end I don't think it is a good idea for US policy makers to let possible al-Qaeda reactions dictate how they act with regard to US laws. There are always incentives not to submit. There may well be very good reasons for not asking for an AUMF for Yemen - and while I think how AQAP could use it should be considered - I don't think it should be a determinative factor.