"1 + 1 = 3"

09.19.14 9:55 AM ET

Even a Top Democrat Thinks Obama's Legal Case for War Makes No Sense

Obama is trying to argue the group is the “true inheritor of bin Laden” in order to legally justify the war. Just don't tell al Qaeda, which booted ISIS in February.

The White House and senior members of the Obama administration have been trying to convince Congress all week that, legally speaking, there’s no difference between ISIS and al Qaeda. But at the same time—and, often, in the very same classified briefings—members of the U.S. intelligence community are telling lawmakers that the two Islamic radical groups aren’t in cahoots at all. In fact, they’re competitors for supremacy in the global jihadist movement.

The Senate and the House this week voted to give President Obama the authority to allow the military to begin training members of the Syrian opposition. It was a victory for a president who has chosen not to ask Congress pass a law to authorize this new war on ISIS, claiming instead that Congress supplied that authority in 2001 when it declared war on the parties responsible for 9/11.  

In the last week, administration lawyers, senior officials and intelligence analysts have made the case that the 9/11 law applies to ISIS in classified and open hearings. Many lawmakers are naturally skeptical, since the two groups formally parted ways last winter.  The briefings didn't exactly dispel this skepticism. In some of them, intelligence analysts conceded that both al Qaeda and ISIS operate under separate command and control structures and are indeed distinct organizations at this point.

“We provide context about the historical ties between al Qaeda and ISIL,” a U.S. intelligence official told The Daily Beast, using the government’s preferred acronym for ISIS. “Now there is a separation between the two groups, but we don’t get into the legal issue. Do they operate under the same command and control structure? The answer to that is ‘no.’” This official added, “The legal answer is not necessarily dispositive of the analytic answer and vice versa.” 

Rep. Adam Schiff, a Democratic member of the House Permanent Select Committee on Intelligence, said the administration’s legal argument to members has described ISIS “as the true heirs to bin Laden and al Qaeda, that they have set out to harm us and they share the same goals and aims as al Qaeda.”

But Schiff said this “has the feeling of a lawyerly kind of argument, to put the best case on a pretty strained legal theory.”  He added, “The facts are not in question, it’s more the application of those facts and the 2001 [resolution], where one plus one equals three.”

Earlier this year, al Qaeda split with ISIS definitively in a public repudiation of the group. The conflict between them, spurred by ISIS’s claim of authority over all Islamist elements in the Syrian war, had been going on for months before al Qaeda finally abandoned attempts at mediation. In a statement released in February, al Qaeda’s senior leadership declared that ISIS “is not a branch of the al-Qaeda group” and “does not have an organizational relationship with it and [al Qaeda] is not the group responsible for their actions.”

For the Obama administration the legal argument for the ISIS war stands in sharp contrast to its public counter-terrorism policy. Not only has Obama asked Congress to consider narrowing or revoking the 2001 war resolution, his administration at times has gone out of its way to downplay the connections between al Qaeda affiliates, al Qaeda-inspired groups, and al Qaeda’s core leadership.

One prominent example is the 2012 attack on the U.S. diplomatic mission and CIA station at Benghazi, Libya. The White House at first said there was no connection to al Qaeda and the attack, and only much later reluctantly acknowledged intelligence that showed some of the attackers were connected to al Qaeda’s affiliates

Speaking before the House Foreign Affairs Committee this week, Secretary of State John Kerry took a very different approach to ISIS and al Qaeda. He said it did not matter that today ISIS and al Qaeda were, by their own admission, two distinct entities. 

“Just standing up in 2013, a year ago, and saying, ‘Hey, we're no longer going to be part of this, because we happen to be worse than them, and they don't like us anymore,’ doesn't get you out from under who you are, and what you’re trying to do, and how you do it,” Kerry said.

Kerry added that ISIS was part of the broader war against al Qaeda today—despite the fact that, in some cases, ISIS and al Qaeda’s franchise in Syria have attacked each other. “We’re convinced that longstanding relationship they had with bin Laden, the longstanding relationship with al Qaeda, the continued desire to attack the United States and U.S. persons, two of whom they’ve already murdered, we have the authority, without any question,” he said. “And it referred to the affiliates, by the way. The language of the resolution referred to al Qaeda and its affiliates. There’s no question that these guys were an affiliate, or are an affiliate. So, we’re convinced we have it.”

In those last comments, Kerry was referring to the 2001 Authorization for the Use of Military Force (AUMF), the resolution that effectively authorized the war on terror. But the AUMF does not even mention al Qaeda, let alone its affiliates. It authorizes “force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

In the last 13 years lawyers for both the Bush and Obama administrations have argued the 2001 AUMF provided the authority to target al Qaeda’s affiliates in places like Yemen and Somalia, as well as “associated forces” of al Qaeda such as the Pakistani Taliban.

But in all of these cases the targets of the fighting were groups that were allies of al Qaeda on the battlefield.

That's not the case in Syria and Iraq. Far from being allies in a single organization, ISIS and al Qaeda have been fighting and killing each other for the better part of a year. Even before al Qaeda’s leader, Ayman al Zawahiri, formally renounced ISIS in February, there had been conflict on the ground in Syria. As early as January, there were reports of skirmishes in eastern Syria between ISIS and al Qaeda’s local affiliate, the al-Nusra Front. During one advance, ISIS wrested control of northern and eastern cities from the official al Qaeda branch and reportedly publicly executed scores of Nusra members captured in battle.

Since al Qaeda’s public excommunication of ISIS and its leader, Abu Bakr al Baghdadi, the fighting between them has continued. While the groups—leaders compete for the support of global jihadists and wealthy donors, local commanders in Syria have fought for control of territory and resources like oil fields and border crossings. Throughout June—the month ISIS announced the establishment of its Caliphate in Iraq’s Mosul—the group was also fought across the border against other Islamist factions in Syria. By mid-July, after a sustained campaign that primarily targeted al-Nusra and other Islamist groups, ISIS was in full control of Deir al-Zor province. Six hundred people were killed and 130,000 driven from their homes in the struggle for Deir al-Zor, according to the Syrian Observatory for Human Rights.

Away from the battlefield, the two groups have sniped at one another online. On social media and jihadi message competing claims over everything from religious authority to the true background of the groups’ leaders has fueled a steady stream of debates and keyboard threats.

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The White House declined to say whether U.S. intelligence analysts tried to square this circle during their briefings on Capitol Hill. “I’m not going to get into intelligence we provide to Congress,” National Security Council spokesperson Caitlin Hayden told The Daily Beast. “I would just point you to what we already said publicly.”

She added that one reason the 2001 resolution applied is because of ISIS’s position as “the true inheritor of Osama bin Laden’s legacy.”

“The president,” Hayden added, “may rely on the 2001 AUMF as statutory authority for the use of force against ISIL, notwithstanding the recent public split between AQ’s senior leadership and ISIL.”

— with additional reporting by Jacob Siegel