October 31, 2014 1:11PM

Presidents, Precedents, and Perpetual War

Good news: after nearly three months of airstrikes in Iraq and Syria, the branding’s finally caught up to the bombing. Our latest war in the Middle East finally has a name: “Operation Inherent Resolve” is what we’re calling it, the Pentagon recently announced. DoD planners had initially rejected that name as uninspiring and “just kind of bleh,” but after several weeks of fruitless searching, they’ve decided it’s the best we can do.

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Get Excited! (Photo Credit: Dept. of Defense)

Here's Defense.gov's banner graphic for "Operation Inherent Resolve": simple, spare, sort of Sisyphean. [/caption]

Actually, with its air of uninspired resignation, “Inherent Resolve” suits well enough, even if something like “Operation Eternal Recurrence” might have fit better. But it surely says something that, as with hurricanes, we’re running out of cool names for the wars presidents launch.

Now that we know what to call it, what should we make of Obama’s latest military intervention and how it fits into the president’s emerging legacy on constitutional war powers? Jack Goldsmith and Matthew Waxman have an important piece on that subject in the New Republic, arguing that “it is Obama, not Bush, who has proven the master of unilateral war.” “The war powers precedents Obama has established,” they explain, “will constitute a remarkable legacy of expanded presidential power to use military force.”

It's a remarkable legacy, all right, though I might put somewhat less emphasis on “precedent” as such. Taken individually, as Goldsmith and Waxman acknowledge, very few of Obama’s actions are wholly unprecedented. But taken as a whole, the president's approach to war powers begins to look like something new under the sun. As I argued recently at The Federalist, Obama will “go down in history as a ‘transformational’ president, having completed America’s transformation into a country where continual warfare is the post-constitutional norm."

Presidents and Precedents 

Goldsmith and Waxman identify "new precedents in three areas." First, they argue that the 2011 Libya intervention ("Operation Odyssey Dawn") marked an expansion of presidential power to launch airstrikes without congressional authorization, pointing to the Obama Office of Legal Counsel (OLC) argument that “such large-scale, non-consensual ‘airstrikes and associated support missions’ did not amount to ‘War’ that required congressional consent.”

The "police action" Truman ordered in Korea was war on a much larger scale (and with a less awful euphemism than the Obama team's preferred coinage, "kinetic military action"—what's the alternative, "static action"?) But perhaps Korea is something of an anti-precedent, as no president since has dared launch a ground invasion of that magnitude without seeking congressional cover. As Goldsmith and Waxman note, Bill Clinton's 1999 air war over Kosovo is probably the closest parallel to Obama's Libyan adventure 12 years later. The Obama OLC opinion on Libya "brought the Kosovo rationale out of the legal shadows and probably extended it. It will stand as the major precedent for unilateral presidential war from the air."

It's worth noting that both presidents waged war in the face of congressional votes refusing to authorize military action. In the Kosovo case, on March 24, 1999, the Senate passed a resolution supporting the bombing, but a month later the House voted down a declaration of war (427 to 2) and authorization for the airstrikes (213 to 213). "There’s broad support for this campaign among the American people, so we sort of just blew by” the House votes, the National Security Council spokesman said at the time. The House muddied the waters considerably by also voting down a resolution requiring the president to terminate the airstrikes immediately. I'd originally thought that Obama conducted the Libyan intervention amid congressional silence, but actually, in June 2011 (three months after the Tomahawks started flying), the House got around to voting on authorization and overwhelmingly rejected it (while rejecting, by a similar margin, a funding bill that would have ended direct combat operations. Sigh.)

The second precedent Goldsmith and Waxman identify is "the hole [the Obama administration] blew in the 60-day limit on unauthorized presidential uses of force imposed by the 1973 War Powers Resolution (WPR).” But here again, Clinton went first with Kosovo, with a 79-day bombing campaign that made him the first president to conduct a war beyond the WPR's 60-day barrier. Still, Goldsmith and Waxman are right to identify the legal rationale the Obama administration advanced as especially troubling.

In Kosovo, the Clinton OLC argued that Congress had implicitly authorized a continuation of the Kosovo operation past the 60-day limit by appropriating funds for the mission. That argument was unavailable to the Obama team as the WPR clock ran out. Its solution, accomplished with an end-run around an objecting OLC, was to rely on then-State Department legal adviser Harold Koh's risible argument that if you bomb a country, but they probably can't hit you back, you're not engaged in "hostilities" within the meaning of the War Powers Resolution. As James Mann has pointed out, "by that logic, a nuclear attack would not be a war." It's a far broader rationale than the one advanced by the Clinton team, and one that opens the door for any future president to make war at will, for extended periods, so long as he does it from a great height.

The final precedent Goldsmith and Waxman identify is the most important: the president's staggeringly broad interpretation of the authorization for the use of military force (AUMF) Congress passed three days after the September 11 attacks, empowering the president to wage war against the perpetrators of 9/11 and those who "harbored" them. The Obama administration "extended the AUMF’s mandate dramatically, and gave its most expansive interpretation, when it pronounced last month that the statute applied to the Islamic State," despite the fact that ISIS is an even worse fit with the plain language of the AUMF than the AQ "associated forces" targeted under the AUMF, having neither "planned, authorized, committed, or aided" 9/11 attacks, nor "harbored" a group that's excommunicated them.

Going Permanently 'Kinetic'

Recently, a report from Politifact evaluated the claim that Obama had bombed more countries than Bush. They rated it “True”—he’s bombed at least seven countries, possibly eight. Politifact couldn’t settle on a precise number. Their report included this intriguing sentence: “both presidents may have bombed the Philippines.” Here again, secret warfare isn't unprecedented. But given the frequency and pace of operations under the 2001 AUMF, at some point a quantitative difference becomes a qualitative one.

Throughout the 20th century, “presidential wars” were geographically limited, often short and sharp departures from the peacetime norm. In the 21st century, however, we’ve gone permanently “kinetic.” Presidential wars are no longer temporary departures from a baseline of peace. As a “war president,” Barack Obama has institutionalized—and accelerated—a trend that began in the Bush administration: war without temporal or spacial boundaries. The “operational tempo” can range from steady to frantic, but the beat goes on, unceasingly. Perpetual presidential war is becoming "the new normal."  

Under the AUMF, Obama has launched eight times as many drone strikes as Bush. At a Senate Foreign Relations Committee hearing last year, a top DoD official affirmed that the AUMF would allow the president to put “boots on the ground” in the Congo without further authorization from Congress; Indeed, the Pentagon envisions a war on terror that will go on “at least 10 or 20 years more.” Possibly the AUMF will serve as the basis for President Chelsea Clinton’s (or George P. Bush's) “kill list” in 2033.

As a candidate for the Democratic nomination in 2008, Barack Obama stood out as one of the few serious contenders who hadn't voted for the Iraq War; as a state senator in 2002, he'd decried it as a "dumb war." Now his administration cites the 2002 authorization for that "dumb war" as a possible source of authority for another one, 12 years later. Meanwhile, as Goldsmith and Waxman write, "the man who hoped to end the war under the 2001 AUMF, and who pledged to fight expansions of its mandate, [has] unilaterally interpreted it to broaden its substantive reach geographically and its temporal reach far into the future."

It's said that Obama privately worries that expanded executive powers will lie around like a "loaded weapon" for future presidents to abuse. If so, he's apparently decided it's a worry he can live with, through all the "dumb wars" to come.