McCain and Graham’s Alarming Suggestion that the Conflicts With Daesh and Assad are “Inextricably Connected”
Steve Vladeck, JustSecurity (Blog), Apr 12 2017
Thanks to Defense One‘s Kevin Baron and Michigan Law’s Monica Hakimi, I just came across the above statement made yesterday by Sens McCain and Graham. Monica’s reaction is, I think, exactly right:
But it’s actually much, much worse than flawed and reckless, it’s also belied by both the plain text of the 2001 AUMF and the (controversial) theory pursuant to which it has been applied to Daesh. Taking the text first, here’s the operative language:
The President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on Sep 11 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against Pindostan by such nations, organizations or persons.
As readers likely know, this language was consciously and deliberately narrower than the version Bush 43 proposed, which would not have included a required nexus to the 9/11 attacks. Syria is not a nation that planned, committed, or aided the 9/11 attacks, or harbored individuals who did so. Of course, the text of the AUMF has been interpreted broadly to encompass groups affiliated with AQ, including Daesh. But the theory there is not that the text of the AUMF is irrelevant or infinitely malleable; it’s that Daesh effectively splintered off from AQ, and so even if Daesh itself wasn’t an organization that was responsible for 9/11, it is directly derivative of (and inherited personnel and infrastructure from) an organization that was. That’s a debatable (and litigation-provoking) proposition, to be sure, but it’s light years closer to the text of the AUMF than McCain and Graham’s suggestion that the fight against Daesh and the fight against Assad are “inextricably connected.” They may be in the same rough part of the world, but they’re not even in the same part of Syria, and it’s not as if Daesh and Assad are supporting each other. Quite to the contrary! It’s possible that the McCain/Graham statement is just empty political rhetoric, and does not portend a legal argument about why Trump already has the statutory authority to use force against the Assad regime, but it’s also possible that it’s the beginning of an effort to blur the lines between Daesh and Assad on Capitol Hill. Blurring that would be reckless, as Monica says, and McCain & Graham should both know better than to encourage it.