The Obama administration has been coy about its legal justification for putting Somali terror suspect Ahmed Abdulkadir Warsame in military detention prior to transferring him to an Article III court for prosecution, but Charlie Savage has a piece that sheds some light on their thinking:
But the administration does not consider the United States to be at war with every member of the Shabab, officials said. Rather, the government decided that Mr. Warsame and a handful of other individual Shabab leaders could be made targets or detained because they were integrated with Al Qaeda or its Yemen branch and were said to be looking beyond the internal Somali conflict.
“Certain elements of Al Shabab, including its senior leaders, adhere to Al Qaeda’s ideology and could conduct attacks outside of Somalia in East Africa, as it did in Uganda in 2010, or even outside the region to further Al Qaeda’s agenda,” said a senior administration official. “For its leadership and those other Al Qaeda-aligned elements of Al Shabab, our approach is quite clear: They are not beyond the reach of our counterterrorism tools.”
Of all the justifications the administration could have given, this latter strikes me as pretty weak. For one thing, Al Shabab, while having shown a rather frightening ability to recruit Americans, hasn’t attacked the U.S. yet. Their horrifying attacks have mostly focused on local and regional targets. That said, as a group they’ve definitely affiliated themselves with al Qaeda despite not being an official franchise, so I’m not really sure it’s accurate to say that only the leadership “adhere to al Qaeda’s ideology,” but in any case mere radicalism is not itself a crime so its weird to premise their being covered by the AUMF on what they might be thinking.
Robert Chesney writes:
The second paragraph deserves closer attention, since it is a direct quotation. And note how it differs from the first paragraph. Rather than speaking of “integration” (with its implication of being dual-hatted), it speaks of al Shabab figures who are ideologically aligned with al Qaeda. If that is taken very literally, and if meant as a claim about the scope of the AUMF, it would imply sweeping authority to use force against a vast array of groups or individuals who share al Qaeda’s perspectives but are not in any sense connected to it as an organization, so long as such groups have transnational aspirations. But I’m skeptical that this was meant to be taken so literally, or even as a claim about the scope of the AUMF (note the language is “not beyond the reach of our counterterrorism tools”; many of those tools have nothing to do with claiming authority under the AUMF).
The more persuasive argument in my view is the first one, that Warsame and others align themselves himself with al Qaeda when they try to facilitate cooperation with AQ franchises, as Warsame is accused of doing. Still, there’s at least enough doubt about whether AQAP is covered under the AUMF that some people in Congress want to expand it. As it stands the administration’s explanation strikes me as highly arbitrary, as in “person X is covered under the AUMF when we say they are.”
