Possible Implications of Al Nusra’s Split from Al Qaeda on the 2001 Authorization to Use Military Force

President Obama in the Situation Room in March 2012. Courtesy Pete Souza for the White House/Wikimedia.

President Obama in the Situation Room in March 2012. Courtesy Pete Souza for the White House/Wikimedia.

In July of this year, Al Nusra, an Al Qaeda spin-off group operating in Syria, rebranded itself as the Fateh al-Sham Front. Beyond this cosmetic name change, Al Nusra’s makeover is in line with a broader effort designed to disassociate itself from Al Qaeda. Although Al Nusra has operated independently from the more moderate opposition, it has, at times, joined forces with these groups to repel government advances in key areas, most visibly in Aleppo. Al Nusra’s split from Al Qaeda is significant, from a U.S. legal standpoint, because the executive branch of the U.S. government has been relying, since 2001, on a congressional Authorization to Use Military Force (AUMF) to prosecute the war against Al Qaeda and its associated forces. By severing links with Al Qaeda, Al Nusra (now Fateh al-Sham), could now fall beyond the scope of the 2001 AUMF. It is likely, however, that the split will not affect U.S. policy. Although the U.S. could creatively read the AUMF to permit attacks on Al Nusra, strategic considerations imply that the United States is likely to continue to avoid targeting the group.

Historically, the Al Nusra Front played a key role in the Syrian conflict up until its jihadi ambitions were sidelined by the more organized and well-funded Islamic State (ISIS). Al Nusra originally rose to prominence after the Syrian revolutionary movement reached an impasse following months of government repression of anti-regime protestors. When it became apparent that peaceful protests would not be sufficient to topple Bashar al-Assad’s hold over the country, many Syrians—some of whom had defected from regime military ranks—began taking up arms. Originally, the war effort was led by the moderate Free Syrian Army (FSA), but after the FSA proved to be an ineffective force against a regime supported by Iran and Hezbollah, other radical groups began to emerge. The Al Nusra Front, headed by a former senior-ranking Al Qaeda official that Assad had released from prison a few years earlier, came to represent a potent force among the myriad other groups that were forming at the time.

In 2014, ISIS took over much of eastern Syria, before officially splitting from Al Qaeda. The split caused mayhem in Al Nusra, with many of its foreign fighters, who had been seduced by ISIS propaganda, defecting to join the new, more appealing, terrorist organization’s ranks. That same summer, ISIS broadcast the execution of a number of American journalists over the internet, causing an uproar in the U.S. This prompted President Obama to allow “limited airstrikes” on the terrorist group. However, instead of seeking congressional authorization to attack ISIS, he chose to rely on the scope of the 2001 AUMF, which applied only to Al Qaeda and its associated forces.

Because ISIS was no longer part of Al Qaeda, let alone an associated force (by that point ISIS and Al Qaeda were battling for monopoly over jihad) relying on the AUMF was unsatisfactory to policy makers and legal scholars alike. In the words of two leading authorities: “The Obama administration’s view has … been widely criticized because the Islamic State, as such, did not exist in 2001 when the AUMF was enacted. Despite its predecessor’s historical connections with al-Qaeda, the Islamic State broke ties in early 2014 with al-Qaeda—and thus cannot be an ‘associated force’ under the AUMF.” An alternative would have been to seek a new AUMF from Congress that would have specifically authorized the President to use all necessary means to confront ISIS.

There are three possible readings of the AUMF, each having its own implications for the U.S.’s interactions with Al Nusra. In a first reading, Al Nusra’s dissociation from Al Qaeda should not matter because if the President can extend the AUMF to ISIS, a group with no present connections to Al Qaeda, surely he would be able to read the statute as also applying to Fateh al-Sham, Al Qaeda’s direct successor.

Another reading of the AUMF is that Al Nusra’s split leads to a conundrum. Unlike ISIS’s split from Al Qaeda, wherein Al Qaeda continued to exist through Al Nusra, Al Nusra’s complete make-over leaves no obvious heir to the Ben Laden enterprise. If both ISIS and Al Nusra—entities that previously held almost exclusive title over the Al Qaeda franchise in the Levant—no longer consider themselves to be Al Qaeda’s successors, then what is left, legally, of Al Qaeda? Put differently, if nothing remains of Al Qaeda and its associated forces, is the AUMF now nothing more than an empty shell?

A final reading—more connected with the reality on the ground—appears to offer more relevant insight. Arguably, now that Al Nusra is no longer Al Qaeda, the U.S. executive branch of power may consider it as a potential resource in countering the Russian-backed Syrian regime’s offensive in northern Syria. This possibility, however controversial, cannot be discounted by a future administration amenable to a more robust and confrontational strategy in the war-battered country.

Until now, the United States appears to have largely focused the bulk of its light footprint warfare operations in Syria on the Islamic State (ISIS), sparing other designated foreign terrorist organizations like Al Nusra. Though in theory, as argued above, a split from Al Qaeda may place the new Fateh al-Sham Front beyond the scope of AUMF authority, this shift would change little in practice, as the U.S. has already been most likely sparing the group from fatal drone strikes.

From a foreign policy perspective, three primary reasons could explain the U.S. President’s continued reluctance to target Al Nusra. First, much of Al Nusra’s significant activity has been recently concentrated in large cities like Aleppo, densely populated areas where other pro-U.S. groups also operate, effectively blurring the lines between friend, foe, and civilian. Second, Al Nusra (unlike ISIS, which directed much of its war against the Syrian opposition) has focused most of its efforts fighting the Assad regime, Russian forces, and Hezbollah. Diminishing the group’s capacity would only serve to strengthen Assad and the Russians, and in turn weaken the U.S. at the negotiating table. In September, Russia’s foreign minister attacked the U.S. on grounds that it was protecting alleged terrorist organizations in Aleppo, perhaps in reference to a possible ambivalence in the executive branch’s military attitude towards Fateh al-Sham. Third, Al Nusra has arguably avoided antagonizing the United States and its allies, limiting most of its belligerency to the Syrian territory and, occasionally, eastern Lebanon. The U.S. would not have benefitted strategically in targeting an enemy which has posed, for the time being, a minimal material risk.

Looking ahead, from a U.S. domestic standpoint, it is unlikely that the executive branch will find it in its best interest to forge an alliance, however partial or covert, with a group who shares a legacy with Ben Laden, whatever military benefits such an alliance might provide. Domestically, this move would result in congressional backlash and fury. There are other options, however. Hillary Clinton has expressed the possibility that she would seek a no-fly zone over Syria if elected President. Mike Pence, the Republican vice-presidential nominee, has voiced similar suggestions. A no-fly zone could represent an effective alternative while avoiding messy entanglements with hardline Islamist groups like Fateh al-Sham. Finally, from a Syrian perspective, Al Nusra’s own legacy in Syria is a bloody one. The group has ruled ruthlessly over populations it governs, and many Syrians would be bitter at the idea of such an alliance. So long as other options remain open, the U.S. would be better off maintaining a distance with such controversial actors, regardless of how the AUMF is interpreted.

Tamer Mallat (@TMallat) is a second year J.D. candidate at Columbia Law School and a graduate of Sciences Po’s school of law. His op-eds on Syria have been published in The Daily Star (Lebanese daily) and ArabsThink.com, a Middle East and North Africa political analysis blog he cofounded in 2011. He is a staff member on the Journal of Transnational Law.

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