In the summer of 2014, ISIS stormed northern Iraq from Syria, captured Mosul, committed widespread atrocities, threatened U.S. consular and diplomatic missions, and threatened to attack Baghdad. Faced with what Secretary of State John Kerry later called genocidal attacks on Yazidis and the threat to U.S. personnel and the Iraqi government, the Obama administration began ordering airstrikes against ISIS, first in Iraq and then in Syria. But there was a legal complication: Congress had not authorized the government to wage war on ISIS. As a result, there was no clear legal basis for a prolonged campaign against the group. [23] Ben Smith and Arabella Thorp “The legal basis for the invasion of Afghanistan” (Parliament, February 26, 2010) accessed 26. December 2012 Given that the power to detain the 39 people remaining at Guantánamo derives from the 2001 authorization, any attempt to repeal or replace the 2001 law or declare the end of the conflict could call into question the legal basis for their detention. The Biden administration has quietly begun transferring some of these people from U.S.
custody. It tries others before military commissions. [fn] Carol Rosenberg and Charlie Savage, “Biden relives efforts to move detainees out of Guantánamo Bay,” The New York Times, July 19, 2021. considers it too dangerous to be released. [fn] Carol Rosenberg, Charlie Savage and Eric Schmitt, “In bad form and getting worse, Guantánamo poses headaches for Biden,” The New York Times, p. 8. July 2021.Hide footnote Without criminal convictions, maintaining a legal basis for the detention of these individuals without the 2001 AUMF may require judicial gymnastics, which will be difficult to defend for reasons of rule of law or civil liberties. While it is still possible that the review will produce some surprises, it currently seems unlikely to be a driver for major changes. Unlike a thorough reassessment of the strategy and legal powers, the review appears to be an exercise within the limits set by the two previous governments. President George W. Bush signs a joint resolution authorizing the use of force against those responsible for the 9/11 attack on the United States.
This joint resolution would later be cited by the Bush administration as the legal justification for its decision to take comprehensive counterterrorism measures, from the invasion of Afghanistan to the wiretapping of American citizens without a court order, to the creation of the detention facility at Guantanamo Bay, Cuba. Even if the US does not reject the paradigm of the war in Afghanistan in law, the withdrawal of US forces will likely lead to greater use of ius ad bellum for any “beyond the horizon” use of force operation, potentially revealing differences between the US, its allies, and others in the interpretation of jus ad bellum elements. In addition, the withdrawal should lead to a deeper examination of the relatively restrictive US approach to the role of international human rights law (ECF) in offshore counterterrorism operations, both in terms of the use of force and detention issues, particularly for those detained at Guantanamo. These developments could, for better or worse, lead to increased reliance on what I have elsewhere called “legalistic national security policy,” which helps resolve disagreements between the United States and its allies, other states, international organizations (IOs) and non-governmental organizations (NGOs) over the scope of international humanitarian law and the interpretation and role of ius ad bellum and IHL in these operations. The Obama administration initially relied solely on the president`s powers as commander-in-chief under Article II of the U.S. Constitution, which are widely understood to include the right to protect both the American homeland and U.S. persons abroad from attack. But he soon faced a challenge: Under the 1973 War Powers Resolution — a law enacted at the end of the Vietnam War to curb unilateral war by the executive branch — the introduction of U.S. forces into hostilities sets a 60-day clock. When this period has elapsed, the executive branch must withdraw the armed forces if Congress has not authorized the conflict. [fn] Crisis Group interview, former US official, August 2021.Hide footnote There was a reason why the government chose this legal path, despite the obstacles erected by the war powers resolution.
One former official recalled that when U.S. forces returned to Iraq in 2014, “we didn`t initially think they had the legal authority [under the 2001 AUMF] to do anything against ISIS. [We thought they could] only protect the embassy. [fn] Interview with Crisis Group, former US official, July 2021.Hide footnote Accordingly, any use of force by the US in Afghanistan would expose and could put pressure on US legal interpretations of what constitutes self-defence. Enshrined in Article 51 of the Charter of the United Nations and customary international law, the doctrine of self-defence provides that a State may use force on the territory of another State if it has suffered an armed attack or is exposed to an “imminent” armed attack, and any use of force must also be necessary and proportionate. Moreover, a doctrine clearly stated by the United States states that in the event of an armed attack or imminent armed attack by a non-State group operating in the territory of another State, the victim State may use force against the non-State group within the territorial State if the territorial State is unwilling or unable to do so. respond effectively to the threat (even without its consent or approval by the UN Security Council). Finally, Article 51 requires any State invoking a justification of self-defence for the use of force against another State to inform the United Nations Security Council. George W. However, Bush only gave the Taliban two weeks to extradite the terrorists, and it seems that no other form of negotiation was conducted, so everything that could be done to prevent the war was not undertaken by the United States and other states that then invaded Afghanistan. Noam Chomsky explained that Washington had not recognized the opposition to Al-Qaeda, which he believed to be strong in the Muslim world [21].
If the U.S. had tried to work with such groups, the spread of al-Qaeda might have been better contained than it is now. In addition, it could be argued that the Taliban were reluctant to abandon these suspected terrorists for many reasons, the most important of which was that it could have provoked unrest in Afghanistan had it not been an initiative supported by the majority of the Afghan population. And given that Afghanistan had already suffered from a bloody and devastating civil war, it was a serious question to consider. Another point to consider was the fact that declaring war on the basis of a terrorist attack could be considered a violation of the principles of necessity and proportionality if a state invoked self-defence to justify war.[22] The executive branch did not report incidents in Niger, or other incidents arising from partners` operations, to Congress within 48 hours, as required by the War Powers Resolution. In the case of the Tongo Tongo incident, it was eventually clarified that the operation was conducted under the supervision of the 2001 AUMF, which likely meant that the government believed it was at war with ISIS`s branch in the Sahel. In the case of the December 2017 confrontation, there were few public explanations for the incident and none for its legal basis. The Trump administration gave a superficial account of the incident in March 2018 and issued a brief statement after being questioned by The New York Times. [fn]”Report on the Legal and Policy Frameworks Guiding the United States` Use of Military Force and Related National Security Operations,” U.S. National Security Council, March 2018; Charlie Savage, Eric Schmitt and Thomas Gibbons-Neff, “U.S. kept silent about its role in another firefight in Niger,” The New York Times, March 14, 2018.
More importantly in relation to the scale of the war, however, the litigation instigated by Guantánamo detainees seeking their freedom helped produce the legal theories that underpinned the entire war on terror. Although the Supreme Court has the government`s legal authority to detain Taliban members under the 2001 authorization in its Hamdi v. Rumsfelds, Guantánamo`s prison population actually included individuals belonging to a much wider range of groups than al-Qaeda and the Taliban. Members of groups such as the East Turkestan Islamic Movement and Lashkar-e-Taiba were also captured on the battlefield (or, in some cases, in third countries) and then transferred to Guantánamo. [fn] Interview with Crisis Group, former US official, July 2021. Respondent`s factum, Parhat v. Gates, 532 F.3d 834 (D.C. Cir. 2008) (No. 06-1397). Hide footnote After U.S. courts recognized the right of these prisoners to request their release or transfer, the U.S.
government had to decide whether to accede to the requests or formulate the legal basis for their detention. [fn] Interviews with the Crisis Group, ex-U.S.
