In a semi-annual report to Congress “consistent with” the War Powers Resolution (a formulation presidents use to abide by the resolution without conceding its constitutionality), President Obama last week acknowledged publicly for the first time that U.S. military forces have been engaged in “direct action” in Somalia and Yemen. The report does not disclose anything that had not already been revealed in unofficial accounts, and the press was inclined to treat the matter as a secrecy issue , noting how grudgingly the administration has been saying anything about the operations involved. But the most important and disturbing aspect of this situation is not so much the secrecy but rather the fact that U.S. military forces are in effect engaging in undeclared hostilities with no effective limits—geographic, temporal or legal.
The ostensible authorization (also mentioned in last week's report on a “consistent with” basis) for these uses of U.S. military forces is the brief resolution that Congress passed in the days immediately following 9/11. That resolution authorized the president “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 September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” More than a decade after 9/11, any connection between that terrorist attack and its perpetrators, on one hand, and U.S. military operations of today, on the other hand, is tenuous to say the least. The continued loose usage of this resolution as an authorizing document comes close to saying that the president can use military force wherever and whenever he pleases as long as he is able to say it has something to do with terrorism. Government lawyers have tried to make the justification of force not sound quite this loose by propounding the concept that the United States is waging war against an entity called “Al Qaeda.” That entity, the concept implies, is as distinct and identifiable a foe as any state would be and therefore constitutes a sound basis for delimiting an authorization to use military force. Another facet of this concept is that because Al Qaeda operates globally, U.S. military force intended to combat it could be employed anywhere in the world.
Some armed nonstate groups may indeed have a clear and cohesive enough identity that they could be treated as foes for force-authorization purposes just as plausibly as a state could. A current example might be another group that is mentioned in the president's report and which a few dozen U.S. military personnel are helping to counter: Joseph Kony's Lord's Resistance Army in central Africa. But Al Qaeda, even if it once had that clear and cohesive an identity, no longer does. The name “Al Qaeda” originally applied to an identifiable group, one led by Osama Bin Laden that conducted the 9/11 operation and certain other terrorist attacks. But that group is barely recognizable, in the form of remnants in the frontier area of northwest Pakistan, even if it is surrounded by some other groups that, although they may have similarly radical inclinations, are different entities. Earlier this month, there was considerable crowing about the killing by a missile-equipped drone of the supposed occupant of the hot-seat job that used to be known as the “Al Qaeda number three”—and since the elimination of Bin Laden last year has been promoted to number two—with much commentary to the effect that there isn't much of anything left to the command structure of this group besides the current leader, Ayman al-Zawahiri. The evidence captured in the raid that killed Bin Laden a year ago showed that for some time he had been more of a source of exhortation to followers than a director or manager of an organization's operations.
Al Qaeda—certainly given how that term is generally applied today—is less a group or organization than it is a brand name and a set of ideas. Those ideas are a combination of radical salafism, faith in the use of violence and animosity toward the United States. To the extent there are personal or other types of ties between the remnants in South Asia and violent Islamist radicals elsewhere, there is not necessarily a correlation with use of the Al Qaeda name. Some have seen advantages in adopting that brand name, and others have not. Western use of the name covers a diffuse set of individuals, cells and groups with widely varying objectives even if they share to comparably varying degrees the Al Qaeda ideas. In short, there is not a distinct entity called Al Qaeda that provides a sound basis for defining and delimiting an authorized use of military force. To say that we are “at war with Al Qaeda” is not at all comparable to declaring war on the Republic of Ruritania.