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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.”

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