Annals of Associated Forces: AQ, AQI, and al Nusrah

With all the recent discussion of surveillance law and policy, it is easy to forget that we had recently been focused on other matters such as the scope of the still-operative 2001 AUMF. On that topic, one of the key issues is: which groups count either as part-and-parcel of al Qaeda or, failing that, as associated forces of al Qaeda (and, within the "associated forces" category, which ones also can be said to be engaged in hostilities against the United States). From that perspective, this AP story is quite interesting. Back in April, AQI's leader claimed credit for starting up al-Nusrah, and declared that henceforth the two AQ affiliates would merge under his leadership. Al Nusrah's leader immediately shot back with a polite-but-insistent denial of a merger, and assertion of his group's obedience directly to AQ central. Now comes a purported statement from al Zawahiri, calling for the two groups to remain separate, and for the two leaders to remain in place subject to AQ central's re-evaluation in one year's time:

In Sunday's letter, al-Zawahri chastises the head of al-Qaida in Iraq, Abu Bakr al-Baghdadi, saying he announced the merger without consulting al-Qaida's leadership. He also admonished al-Golani for publicly distancing himself from the merger."The Islamic State in Iraq and the Levant will be abolished," al-Zawahri said, adding that Nusra Front will remain an independent branch of al-Qaida. Al-Baghdadi and al-Golani are o stay on as leaders of their respective branches for another year, after which the al-Qaida leadership will decide whether they will keep their posts or be replaced.

What does it all mean from an AUMF perspective? Hard to say, even assuming that the right reading of the AUMF is to exclude associated forces that have not themselves engaged in hostilities against the United States.One view of this story is that it cuts against the position that al-Nusrah is best understood as an associated force of an associated force (AQI) of al Qaeda (though I suppose one might not allow al Zawahiri's statement to be dispositive on that point). That is, the story suggests that al Nusrah is an associated force in its own right, or else part-and-parcel of al Qaeda itself. If the former, then it matters a great deal whether there is and should be an engaged-in-hostilities-with-the-US test under the AUMF. If the latter, it's not clear that the question arises. I suppose the most we can say, from the outside, is that this unfolding story is useful as a lens through which to highlight some of the key legal questions involved in ascertaining the AUMF's scope.