It has been over three years since the Benghazi terrorist attack took place when Islamic militants attacked the American diplomatic compound in Benghazi, Libya, killing U.S. Ambassador J. Christopher Stevens, U.S. Foreign Service Information Management Officer Sean Smith, and two CIA contractors. Since its 2011 civil war which ultimately toppled Muammar Gaddafi, Libya has plunged into the chaos of a failed state. Libya is inundated by fighting among two rival governments — one in the capital, Tripoli, and the other in Tobrok — along with various tribal militias and the Islamic State. That has left the country, along with its vast network of oil fields, open to the ravages of ISIS as the new hotbed for terrorist activity.
For the last year Syria has been the epicenter and basis for the Islamic State’s self-professed caliphate, however ISIS’s footprint has not only expanded in the Levant, but also internationally to Saharan Africa as well. Libya has replaced Syria and Iraq as the top military priority, especially for Europeans. In the course of the last week the United States and France have reportedly conducted military operations in Libya against the Islamic State. ISIS’s rapid expansion into Libya has caught many military intelligence experts by surprise. Coupled with the political stalemate involving Libya’s two governments having competing patrons — Tripoli supported by Qatar and Turkey, while Tobruk gets the nod from the West, Egypt and the United Arab Emirates — the political vacuum has enabled ISIS to gain large tractions of territory in Libya.
It is estimated that ISIS dominates a 120-mile stretch of territory extending east along the coast, which is a significant achievement since this territory provides it with a relatively safe base from which to attract new recruits and plan attacks.
The United Nations estimates that the group commands 2,000 to 3,000 fighters there. U.S. intelligence officials estimate its fighting strength at 5,000 to 6,000 men. Finally French sources claim that ISIS commands over 10,000 fighters.
Current airstrikes in Libya and the small amount of U.S. Special Operations ground forces are still currently operating under the authority set forth by the decade old 2001 Authorization for the Use of Military Force (AUMF). Section 2 specifies that:
The President is authorized 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, 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.
However passing a new AUMF has proved both politically and militarily contentious. Congress had the opportunity to pass a new AUMF to combat ISIS in February 2015 when President Obama sent a version to Congress.  Republican lawmakers promptly dismissed the draft authorization as too restrictive and democrats criticized it for not repealing the still-used 2001 AUMF. The 2001 AUMF was not repealed, and a new one to combat ISIS was never passed.
During the week of February 14, 2016 President Obama authorized an attack on an ISIS training camp in Libya, targeting high-value asset, Noureddin Chouchanein, a Tunisian terrorist who facilitated the flow of foreign fighters across North Africa.
“The president authorized this strike,” Pentagon spokesman Peter Cook told reporters. The following exchange between Pentagon spokesman Peter Cook and reporter was especially forthcoming:
Reporter: “But Peter, under what authority was this strike carried out? There is no AUMF for ISIS in Libya; no Americans were killed in the two attacks in Tunisia. Under what authority?”
Cook: “Well, again, we’ve struck in Libya previously, under the existing…authorization for the use of military force,”
Reporter: “In 2001, against Al Qaida?”
Cook: “Yes, specifically. And this — in our targeting of Chouchanein this instance. And we believe that this was based on — was legal under international law.”
Reporter: “But you’re saying that you’re using the 2001 AUMF against Al Qaida to go after ISIS in Libya?” the reporter followed up.
Cook: “Specifically, again, as a — the use of military force against ISIL is authorized by the 2001 Authorization for the Use of Military Force, specifically. Just as it was — as we used it in our previous strike in Libya.”
Given their loose affiliation and spawn from Al Qaeda it is understandable how security law experts can rationalize the use of the 2001 AUMF as their legal authority to continue to conduct limited operations in Libya. However if the situation ever calls for significant boots on the ground, as some experts have called for, under a new Presidential administration a new AUMF with limited scope might be possible and more effective in combating and defeating the Islamic State.
Anthony Christina is a 3L and a Resident Student Blogger with the Journal of Law and International Affairs at the Penn State University-Dickinson School of Law.