Consortium Against Terrorist Finance Dec. 6, 2016, 8:59am

Executive authority has evolved under President Obama. Hindered by Congressional stagnation but unwilling to give up on the promises of his campaigns, Obama’s administration maneuvered a deeply divided legislature and nation by heavily relying on executive orders and regulations. In light of the recent election results, there has been no shortage of attention placed on how President-Elect Donald Trump may also embrace a robust executive to pursue his own initiatives and drawback those of his predecessor. Many policy shifts propelled by executive action, including those related to healthcare, immigration crackdowns, and the expansion of DACA (Deferred Action for Childhood Arrivals) and EPA (Environmental Protection Agency), may well be affected by Trump’s own executive actions.

But the effects of an emboldened executive under President Obama will not be limited to the domestic front. In recent years, the White House has pursued a contradictory policy of attempting, perhaps in reaction to internal pressure, to curtail U.S. airstrikes abroad while simultaneously upholding its interests and the interests of its international partners in limiting the influence of Islamist militias. Restricting U.S. involvement to airstrikes in partnership with international allies has prevented Washington from becoming entangled in foreign occupations and U.S. troops from being deployed to combat. But, the combination of U.S. warplanes in the air and military advisors on the ground can lead the administration to forgo Congress in its pursuit of international terrorists. Nowhere is this clearer than in Somalia.

The Obama administration has quietly mounted a “shadow war” against Al-Shabaab militants in Somalia that may resemble U.S. involvement in the nearby conflicts in the Middle East. Like in Iraq, Syria and Yemen, the U.S. has favored international coalitions, airstrikes, and regional partnerships over “boots on the ground.” And also similar to those conflicts, U.S. efforts have expectedly expanded as the enemy becomes more daring and the threat becomes more alarming. In Iraq and Syria, the establishment of an ISIS quasi-state provoked the U.S. to take the global coalition’s attacks to new heights while al-Nusra’s dangerous expansion in northern Syria led the administration to more closely focus on attacking the al-Qaeda linked group. In Somalia, an emboldened and increasingly deadly Al-Shabaab has emerged as a clear threat to U.S. allied African Union troops and the future of the East African state. As a result, the administration has seized on an opportunity to attack Islamist militants they fear may threaten the U.S., to strengthen alliances with regional partners, and to establish security in the Horn of Africa.

But U.S. strikes in Somalia, unlike those in Iraq and Syria, have come into question for having a shaky legal basis. The Authorization for Use of Military Force (AUMF) from Congress to carry out attacks on the perpetrators of the 9/11 tragedy has been cited as support for U.S. action against groups affiliated with al-Qaeda, like Jabhat al-Nusra and even al-Qaeda’s offshoot turned enemy, ISIS. But U.S. military attacks on Al-Shabaab, which did not exist at the time of 9/11 and whose links to al-Qaeda’s leadership are less clear, have led some to believe that U.S. involvement in Somalia is not covered by the 2001 authorization. The fact that Congress has still not voted on U.S. strikes on Al-Shabaab, which after many months could violate the War Powers Resolution limiting combat deployments to 60 days before requiring the approval of Congress, constitutes another challenge facing the administration in Syria.

As American airstrikes in Somalia escalated, even killing over 150 suspected Al-Shabaab foot soldiers in March, the administration moved swiftly to shore up any doubts over the legality of Washington’s involvement. Perhaps unsurprisingly, Congress was not consulted. Instead, the administration deemed Al-Shabaab to be a legal target under the 2001 war authorization due to its leaders’ ties to al-Qaeda. And while debates remain over the extent of the links between its parochial foot soldiers and al-Qaeda’s leadership, the administration will now have a legal target in Al-Shabaab. Now defined as an al-Qaeda affiliate, the administration has argued that strikes on Al-Shabaab in defense of American advisers on the ground are not subject to the limits of the War Powers Resolution. In other words, legislation specifically aimed at uprooting the perpetrators of 9/11 in the aftermath of the attack has been recycled as legal grounds for striking Al-Shabaab in Somalia.

All this comes after what appeared to be a concerted effort on behalf of the Obama administration to limit what many saw as an excessive use of airpower. In 2013, Obama looked prepared to turn the page on a period marked by U.S. drones and warplanes spread out through international skies. The President called for drone strikes and counterterrorism operations to be limited to areas of “active hostilities.” The Presidential Policy Guidance introduced significant oversight, including the input from top lawyers, to judge the legality of a proposed strike. But it didn’t take long for the administration to realize the consequences of their own actions. In Somalia, not defined as an “area of active hostilities”, the military has often claimed it is acting in defense of its advisors on the ground. It remains unclear, however, just how threatened Americans were during the March airstrike that killed over 150 suspected Al-Shabaab fighters.

The U.S.-backed “shadow war” in Somalia represents a glimpse of Obama’s military legacy. Determined to avoid deploying “boots on the ground” but plagued by the emergence of threatening terrorist groups, Obama has quietly expanded the legal scope of military force all while publically advocating for its constraint.

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