4 September 2013 — Unredacted

The National Security Archive recently submitted an MDR request for the Pentagon’s current list of Al Qaeda associated forces. The list is significant not only in determining whom the military is targeting in its citizens’ names; it also illuminates the Pentagon’s broadening interpretation of its post-9/11 mandate at the expense of Congressional oversight.

Sen. Carl Levin (D-Mich) asked the Department of Defense for the list of Al Qaeda (AQ) associates during a May 16, 2013, Armed Services Committee hearing, and the Pentagon obliged. However, the Pentagon informed Levin’s office that the senator wasn’t allowed to share any of the information in the list, as doing so could cause “serious damage to national security.” The military’s claimed concern is that releasing the list of names would validate AQ’s associates, and “build [their] credibility” by being known US targets.

The common sense of the Pentagon’s rationale is questionable, as is the constitutionality of targeting AQ associated forces in the first place.

Yemenis protest US drone strikes targeting AQ associates – associates whose existence is well known. Photo credits Reuters.

Jack Goldsmith, a Harvard law professor and former legal counsel to George W. Bush, told ProPublica that the Pentagon’s justification is flimsy, arguing, “[i]f the organizations are ‘inflated’ enough to be targeted with military force, why cannot they be mentioned publicly?” It’s also probably incorrect to argue that the list needs to be kept secret considering the intense media coverage drone strikes against Al Qaeda associates, particularly in Yemen, have received.

The list itself begs larger questions about targeting Al Qaeda associates at all. The war against Al Qaeda is legally sanctioned by the Authorization for Use of Military Force (AUMF), which was signed the week after 9/11 and enables the President ”to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.” AUMF doesn’t ‘include the words “associated forces,” though courts and Congress have endorsed the phrase.’ Despite Congressional concern over the Pentagon’s “astoundingly disturbing” broadening interpretation of the AUMF to target associated forces, which Sen. Angus King (I-Maine) argues makes the war power of Congress “a nullity,” Congress itself codified the phrase in the 2011 National Defense Authorization Act (NDAA). The 2011 NDAA authorizes the US military to detain Al Qaeda, Taliban, “or associated forces that are engaged in hostilities against the U.S. and its coalition partners,” though the NDAA does not define what “associated forces” means.

We’ll keep you posted on our the progress of our MDR request for the list.