More on the AQ/AQAP Issue, Including Thoughts on How the Co-Belligerent Concept Fits In

In my post below regarding the AUMF and the possible AQ/AQAP distinction, my main point was to suggest that there is a strong argument for treating AQAP as part-and-parcel of al Qaeda itself, in arguable contrast to other, less directly-connected regional groups such as al Shabaab (see Jack's post here), and thus for concluding that the AUMF does indeed encompass AQAP.  I did go on to say that if AQAP is not best understood to be part-and-parcel of al Qaeda itself, then in order for it to come within the scope of the AUMF one would have to show that AQAP satisfies the substantive test mentioned in the AUMF (which might be hard to do).  I then quickly moved on to other aspects of this issue, and concluded by noting that the issue might be merely academic since a strong argument can be made that AQAP's repeated attempts to carry out terrorist attacks against U.S. targets implicates Article II self-defense authorities that might satisfy any lingering domestic constitutional concern about the decision to resort to armed force.    What I did not do, however, was say anything about how the co-belligerency concept relates to all of this. That was an unfortunate omission, given that the government in its opening brief in al-Aulaqi several times makes the point that the President has determined that AQAP is either part of al Qaeda (my point in my original post) or else an "associated force, or cobelligerent" of al Qaeda.  I certainly don't mean to reject that argument.  It seems reasonable to me that in conferring authority to use force against any particular entity, Congress should be understood as conferring latent authority as well to use the same force against other entities that join the resulting fight.  Thus, to take what I think is an easy case, the AUMF surely extends to the use of force against the Haqqani Network.  Of course, we can get to the exact same place without even looking to the AUMF by arguing that the Haqqani Network's attacks on U.S. forces in any event trigger Article II self-defense authorities.  Where the distinction might matter, I suppose, is in response to the argument that AQAP is differently situated from the Haqqani Network in that the former is not attacking US forces in Afghanistan.  It seems to me that even if one thinks that there should be geographic restraints of some kind on a co-belligerent rationale (I'm not persuaded that there should be), this does nothing to undermine the applicability of the alternative Article II self-defense theory. Is it all academic then?  Maybe, maybe not.  When it comes to the authority to engage in episodic uses of force as exemplified by the 1998 Clinton Administration missile strikes directed at al Qaeda, I think not.  The harder question is whether more sustained applications of military force, including long-term detention, can rest equally comfortably on either an Article II self-defense theory or an AUMF co-belligerent concept.  At a minimum, any claim to have such non-episodic authority will be far more sustainable if premised on statutory grounds.