Because the 2001 Authorization of the Use of Military Force “has no sunset” or “geographic limits,” a panel of legal scholars agreed that it likely covered President Barack Obama’s moves against the Islamic State in Iraq and Syria (ISIS) and the al Qaeda cell Khorasan, but invoking the old law also opened the door for congressional review after the midterm elections.
Speaking Thursday at the Heritage Foundation during a forum on the legal implications of using force against ISIS, Steven Bradbury, a partner at Dechert LLP who served in the office of legal counsel in the Department of Justice during the administration of George W. Bush, said, the law gives “very broad authority” to use force because “essentially ISIS is al Qaeda” and Obama’s actions are “all part of the same war on terror” against a group trying “to set up a caliphate” from “the Mediterranean to the Indian Ocean.”
With that said, he told the audience at the Washington think-tank, “There is a strong argument” to have Congress review the law and have “it tailored for today.”
Robert Chesney, a law professor at the University of Texas-Austin and a member of the president’s Detention Policy Task Force, said the case was more clear in attacking Khorasan—with 40 Tomahawk missiles hitting eight targets—given its direction connection with al Qaeda, but less so with ISIS.
Ayman “Al-Zawahiri (al Qaeda’s leader) finally threw [ISIS] out” over tactics used against Muslim civilians, he said. The 2001 authorization established two broad tests to be applied for the use of force on groups “centrally controlled” by al Qaeda or al Qaeda itself and posing an imminent threat to the U.S. interests.
The beheadings of two American journalists “does muddy the waters” of a threat to the United States or its allies, Chesney said. But the question is: Has ISIS attacked us? He said a legal case could be made for U.S. military action. The basis would be that because ISIS-controlled territory could be used as a sanctuary for terrorists directly threatening the United States—in the way Afghanistan was used by al Qaeda before 11 September 2001—an attack would be justified.