Using Force Against AQIM: The AUMF, the NDAA, and Inherent National Self-Defense Authority

This article in the Wall Street Journal, by Julian Barnes and Siobhan Gorman, draws attention to US government plans to ramp up counterterrorism efforts in Libya, including in particular efforts targeting al Qaeda in the Islamic Maghreb ("AQIM"), in the aftermath of the attacks on the US consulate and safe house in Benghazi.  According to Barnes and Gorman, this effort for the moment appears focused on working with regional governments rather than entailing direct action by US assets:

The U.S. is preparing for a stepped-up counterterrorism campaign against al Qaeda's affiliate in North Africa in response to the Sept. 11 attack on the American consulate in Libya, said current and former officials.  ... The government is considering additional deployments of Predator or Reaper drones to supplement those already in the region. While the pilotless aircraft carry missiles, current talks under way revolve around their utility as surveillance tools.  ...The thrust of the efforts would be to help governments in North Africa suppress al Qaeda in the Islamic Maghreb, known as AQIM, and other militant groups, officials said.

That said, a more direct US response remains a possibility:

The administration hasn't ruled out a direct U.S. response, officials said.

So let's hypothesize a drone strike on an AQIM target.  What might be the domestic law justification for such an attack?  It will be tempting to simply point to the AUMF (as supported by the NDAA, though note that the NDAA focuses on detention not targeting).  This argument could work, but for reasons I explore in detail in my "Beyond the Battlefield, Beyond al Qaeda" paper the question is in fact a complicated and difficult one thanks to persistent--indeed, growing--uncertainty regarding the precise organizational scope of the AUMF (among other things).  Indeed, the WSJ article does a nice job of highlighting the stew of organizational affiliations that may be in play in connection with the Benghazi attacks, noting the possibility that those presenet included members of local militias, AQIM, and even--quite disturbingly--someone associated with al Qaeda in Iraq (AQI). But nevermind all that.  Couldn't a strike on AQIM just as well be predicated on the authority of the President to use force in self-defense in the aftermath of an actual attack?  The situation is rather similar the situation following the 1998 East Africa embassy bombings carried out by al Qaeda, when the Clinton Administration launched a barrage of cruise missiles on al Qaeda targerts in both Afghanistan and the Sudan on a stand-alone Article II self-defense theory (there having been no AUMF at the time).  The Benghazi attacks were much smaller in scale of course, and this may have implications for the proper scale of any resultant use of force in the name of self-defense.  Still, the comparison suggests there may be no need to bend over backwards to bring the AUMF to bear on the situation.  Unless, of course, we were to capture and detain, rather than kill, an AQIM target.    All that said, I don't actually expect to see direct action of either kind conducted by the United States, at least not overtly.  I think it's far more likely that we will work through and with North African governments to the maximum extent possible, supplementing their efforts with training, intelligence, and other aid.