This article appeared on The Federalist on October 10, 2014. In May 2013, some 11 years into the War on Terror, President Obama took a break from reviewing target sets and kill lists to deliver a much-anticipated drone speech at the National Defense University in Washington DC. We must define the nature and scope of this struggle, or else it will define us, Obama admonished; we have to be mindful of James Madisons warning that No nation could preserve its freedom in the midst of continual warfare.
It was a disorienting performance: at times, Obama seemed to be speaking not as the president, but as his own loyal oppositiona thoughtful critic who might conduct himself differently if installed as head of Dronefleet Command. Unless we discipline our thinking, our definitions, our actions, Obama intoned, we may be drawn into more wars we dont need to fight, or continue to grant presidents unbound powers. He welcomed this debate
with himself.
With Tomahawks raining down on both sides of the Iraq-Syria border, it would be nice to have Congress debate the presidents newly declared war against the Islamic State of Iraq and Syria (ISIS), but it doesnt look like that will happen anytime soon.
We should recall James Madisons warning that No nation could preserve its freedom in the midst of continual warfare. Still, its not too early to take stock of the Obama legacy on constitutional war powers. Hell go down in history as a transformational president, having completed Americas transformation into a country where continual warfare is the post-constitutional norm.
War: The New Normal
Obamas hardly the first president to wage war without congressional authorization. Although the Constitution invests Congress alone with the power of changing our condition from peace to war, every post-World War II president has found some excuse for striking out on his own. Many of these engagements were of the frolic and detour variety: rescue missions,retaliatory fly-bys against rogue regimes, short incursions to depose a dictator or reverse a coup. Longer commitmentslike the peacekeeping deployments to Lebanon and Somalia, Bill Clintons 78-day air war in Yugoslavia, even the decade-plus of no-fly-zone enforcement in Iraq following the Gulf Warwere nonetheless territorially confined.
In the twenty-first century, however, weve gone permanently kinetic. Presidential wars are no longer limited departures from the peacetime norm. As a war president, Barack Obama has institutionalizedand accelerateda trend that began in the Bush administration: war without temporal or spatial boundaries. The operational tempo can range from steady to frantic, but the beat goes on, unceasingly. Indeed, as the Wall Street Journal reports, were running out of cool names for the operations we launch. The bombings gotten ahead of the branding: for the time being, President Obamas latest simply goes by Operations in Iraq and Syria.
In his six years, Obama has bombed more countries than George W. Bush managed in eight, Politifact recently affirmedalthough they had some trouble settling on a precise number. They credited 44 with repeated strikes on Afghanistan, Iraq, Pakistan, Somalia, Libya, and Syria, and noted that, while we could not confirm the authenticity of these reports, Obama may have bombed the Philippines in 2012.
The War on Terror has become increasingly unmoored from its original legal basis: the Authorization for Use of Military Force resolution, or AUMF, that Congress passed three days after September 11, 2011. The AUMF authorized the president to use all necessary and appropriate force against the perpetrators of the 9/11 attacks and those who aided or harbored them. Thirteen years on, the administration continues to rely on an expansive interpretation of that language to target so-called associated forces of Al Qaedaincluding groups that didnt exist on 9/11 and whose connections with core Al Qaeda are ever more tenuous.
A declaration of armed conflict against a long and/or open-ended list of emerging terrorist groups undermines the important distinction between war and peace, law professors Jennifer Daskal and Stephen Vladeck warned in the Harvard National Security Journal earlier this year: such an approach would change the default from peace to war. At this point, it seems appropriate to drop the conditionalwere already there.
Old Declarations of War Never Die
Since early August, the president has launched more than 200 airstrikes against ISIS targets in Iraq; two weeks ago, he began hurling Tomahawk missiles into Syria, some of them aimed at the heretofore unknown Khorasan Group, which, were told, threatens to bring down U.S. passenger planes by setting off explosive clothes.
After a few false starts, the administration seems to have settled on the 2001 AUMF as its main source of legal cover for the war against ISIS. One problem with that rationale is that core Al Qaeda has publicly denouncedand excommunicatedISIS. A recent statement from an unidentified senior administration official offers the administrations legal workaround. Because of the groups longstanding relationship with Al Qaeda, and its position supported by some individual members and factions of AQ-aligned groups that it is the true inheritor of Usama bin Ladens legacy, ISIS fits within the AUMF, despite the public split between AQs senior leadership and [ISIS]. That is, some time ago, they used to be friends, and many in the jihadi community think ISIS is hot stuff.
Does that make ISIS an associated force of a group that refuses to associate with them? Or is the administrations legal theory that the torch has been passed to a new generation, and ISIS is the proper successor to al-Qaeda under the AUMF? Either wayas far as the administration sees ittheyre covered. A neat trick, that. Who needs John Yoo when you can get what you want by torturing decade-old authorizations for wars past? In the Obama theory of constitutional war powers, Congress gets a vote, but its one Congress, one vote, one time.
Well, maybe two times. The same senior administration official also insists that theAuthorization for Use of Military Force Against Iraq Resolution of 2002 still has enough life left in it for another war in Iraq, if not strictly against it. Even so, he writes, our position on the 2002 A.U.M.F. hasnt changed and wed like to see it repealed. Got all that straight?
War on a Need to Know Basis
The administration has relied on the 2001 AUMF to justify an archipelago of secret drone bases in the Middle East and Africa, and a war that will continue at least 10 to 20 years more. The way the Obama team interprets that resolution may help explain why Politifact was unable to determine whether Obama or his predecessor had bombed the Philippines. In the administrations view, information on where and with whom were at war can properly be withheld from the American people.
In a Senate Foreign Relations Committee hearing one year after the presidents drone speech, Sen. Bob Corker (R-TN) led the Pentagons general counsel, Stephen Preston, through a list of jihadist groups, asking him which ones the administration believed it had the power to go after under the 9/11 AUMF. Al Nusra? AQIM? ISIS?
Each time, Preston refused to answer: Sir, again, the groups that weve not identified as groups we are currently operating against, the intelligence and applications of the standards under the AUMF is not something that we are prepared to discuss in an open session. Letting Americans know who were at war with could cause serious damage to national security, you see. Thats what a Pentagon spokesman told a ProPublica reporter: Because elements that might be considered associated forces can build credibility by being listed as such by the United States, we have classified the list.
Its grimly amusing to puzzle out how this building credibility theory might intersect with the administrations argument that being viewed as the true inheritor of the bin Ladens legacy puts a group on the AUMF hit list. If publicly identifying an associated force invests it with jihadi street cred, then bombing the group must really boost its claim to be AQs heir apparent. If any particular cliques not quite there yet, perhaps Team Obama can summon legal authority into existence through the very act of hurling Hellfire missiles at them.
Target, Rinse, Repeat
At the very least, an open-ended war on emerging jihadist groups may conjure up its own political justification. Collateral damage from American ordinance can build their credibility and swell their ranks. And targeting groups that havent yet targeted the U.S. home front surely raises the risk that theyll return the favor.
Theres been no sign of active plotting against the homeland, from ISIS, the chairman of the joint chiefs of staff said in August; no credible information that [ISIS] is planning to attack the United States, the director of the National Counterterrorism Center affirmed last month. A few hundred U.S. airstrikes later, it could be that their incentive structure has changed.
If blowback from our ever-expanding War on Terror takes the form of domestic terror attacks, that in itself will be taken as proof of the need for a more aggressive response abroad and new restrictions on liberties at home. The global war on terror has acquired a life of its own, says intelligence analyst Patrick Lang: Its a self-licking ice cream cone.
We cannot use force everywhere that a radical ideology takes root, Obama said in his National Defense University speech, because a perpetual warthrough drones or Special Forces or troop deploymentswill prove self-defeating, and alter our country in troubling ways.
It might, at that. Still, we fight on. The droning will continue until morale improves.