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On the AQAP-al Qaeda Relationship and Its Implications for the AUMF

Robert Chesney
Tuesday, August 6, 2013, 7:19 AM
This story from Ellen Nakashima and Anne Gearan, in the Washington Post, reports that the threat leading to the closure of so many embassies and consulates involves a direct order from Ayman al-Zawahiri (successor to bin Laden as head of al Qaeda central) to Nasir al-Wuhayshi (head of AQAP but also, as the article reminds us, recently named by Zawahiri as his deputy within the AQ central

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This story from Ellen Nakashima and Anne Gearan, in the Washington Post, reports that the threat leading to the closure of so many embassies and consulates involves a direct order from Ayman al-Zawahiri (successor to bin Laden as head of al Qaeda central) to Nasir al-Wuhayshi (head of AQAP but also, as the article reminds us, recently named by Zawahiri as his deputy within the AQ central command structure), requesting the latter to orchestrate an attack.  Obviously an interesting development in its own right, but also interesting from an AUMF perspective. The relevance of course is that it reinforces the case for categorizing AQAP as an associated force engaged in hostilities against the United States (a case that already was quite strong, in my view), and indeed that it makes less sense today than in the past to think of AQ central and AQAP as distinct entities requiring an associated-forces analysis in the first place.  On this latter point, to be sure, there could certainly be a difference--a salient difference--between full (or even substantial) direction-and-control of AQAP by AQ central and the evidence we have here; too little information in the public record, I think, to allow for strong claims on that question one way or the other.  But it's an important point, legally speaking, insofar as (i) some take the view that the demise of AQ central would mark the demise of the 2001 AUMF even if one or more associated forces remain functional and (ii) categorizing AQAP as part-and-parcel of AQ itself rather than as an associated force would seem to make it considerably less likely that we'll see the demise of AQ anytime soon.  Food for thought, at any rate.

Robert (Bobby) Chesney is the Dean of the University of Texas School of Law, where he also holds the James A. Baker III Chair in the Rule of Law and World Affairs at UT. He is known internationally for his scholarship relating both to cybersecurity and national security. He is a co-founder of Lawfare, the nation’s leading online source for analysis of national security legal issues, and he co-hosts the popular show The National Security Law Podcast.

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