By Kristina Wong - 01/16/14 06:00 AM EST
The U.S. military cannot hunt down and kill people responsible for the deadly 2012 attack on an American compound in Benghazi, Libya, as long as the terrorists are not officially deemed members or affiliates of al Qaeda, newly declassified transcripts from congressional hearings show.
“The individuals related in the Benghazi attack, those that we believe were either participants or leadership of it, are not ‘authorized use of military force,’ ” Gen. Dempsey told the House Armed Services Committee in his classified testimony during a closed hearing.
The transcript was released on Monday.
“In other words, they don’t fall under the AUMF authorized by the Congress of the United States. So we would not have the capacity to simply find them and kill them either with a remotely-piloted aircraft or with an assault on the ground,” Dempsey said.
The U.S. could seek to capture the Benghazi attackers under the existing AUMF, but it would need to rely on forces in Libya or any other countries where the attackers are hiding to do so.
Dempsey’s classified comments highlight the limits of the existing authority, which was approved by Congress after the Sept. 11, 2001, attacks, and the difficulty of fighting a constantly evolving enemy that, in al Qaeda, has inspired independent terrorist groups to try and murder American forces and civilians.
The AUMF gives the military authority to hunt and kill those responsible for the 2001 attacks wherever they are, and has allowed President Obama to authorize hundreds of drone strikes in Pakistan, Yemen, Somalia and Libya. It has also been used to authorize several special operations raids, such as the one that took out Osama bin Laden.
But the law’s limitations are real because it can be difficult to show that shadowy groups have links to al Qaeda.
“I have heard from military and security officials in the administration the AUMF limits their ability to target terrorists because making that al Qaeda link is a challenge,” a GOP aide said Wednesday. “It would be useful for counterterrorism efforts if it was expanded.”
Rep. Pete King (R-N.Y.), a member of the House Intelligence Committee, said the AUMF should be expanded to include those involved in the Benghazi attack.
“If you ask me specifically about Benghazi, I say yes,” he said.
It’s unclear if anything has changed from the Pentagon’s point of view since the October briefing.
Dempsey’s answer was “consistent with the intelligence available to him at the time of his response,” a defense official said on Tuesday.
The official declined to comment on whether the attackers still are not covered under the AUMF, citing secrecy on intelligence matters. But the State Department said that is the case.
It still has “no indications that core Al Qaeda was involved in directing or planning this attack,” State spokeswoman Marie Harf said Wednesday. Even if there are “guys who may have ties or loose affiliations with al Qaeda,” it doesn’t mean core al Qaeda was involved,” she said.
The State Department has moved to designate two groups involved in the attack that killed Ambassador Christopher Stevens and three other Americans as terrorist organizations, but State spokeswoman Jen Psaki last week said they are “not official affiliates of core al Qaeda — so we have no indications still, that remains the case, that core al Qaeda directed or planned the Benghazi attack.”
As long as the individuals and groups are not linked to al Qaeda, they cannot be targeted under the AUMF, according to Sen. Carl Levin (D-Mich.).
On Wednesday, a report by the Senate Intelligence panel said those responsible for the attack had al Qaeda ties, but it is not yet known whether this would change the White House’s definition of whether the groups would fall under the AUMF.
The question of whether the groups responsible for the attack are linked to al Qaeda has come under heavy debate in recent weeks, after The New York Times published a Dec. 29 report that said there was no evidence that “Al Qaeda or other international terrorist groups had any role in the assault.”
Reps. Mike Rogers (R-Mich.) and Adam Schiff (D-Calif.), chairman and a senior member of the House Intelligence panel. respectively, said Dec. 29 on Fox News that they disagreed with the report and that intelligence indicated al Qaeda was involved.
Last week, Senate Intelligence Committee chairwoman Sen. Dianne Feinstein told The Hill it was her understanding that groups “loosely associated with al Qaeda” were involved in the attack.
A spokesman for the senator in an email said she meant that groups were not “directly connected to (or taking orders from) core AQ in Pakistan.”
The State Department officials say there is a formal process for a group to become an official affiliate of al Qaeda — which includes swearing allegiance to the current leader of core al Qaeda, Ayman al-Zawahiri — but did not go into specifics.
Experts and lawmakers say the distinction between “core al Qaeda” and other affiliates is outdated.
“What many officials may not realize is that al Qaeda has long issued general guidance to its members and allowed its affiliates to determine how best to implement the attacks, which means ‘core al Qaeda’ may never have issued specific orders,” said Dan Green, a fellow at the Washington Institute on Near East Policy.
“Today there is no central al Qaeda nucleus,” said Rep. Michael McCaul (R-Texas), chairman of the House Homeland Security Committee, at a hearing Wednesday. “This is a distinction without a difference.”