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 Madison’s 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 opposition—a 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 don’t 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 president’s newly declared war against the Islamic State of Iraq and Syria (ISIS), but it doesn’t look like that will happen anytime soon.
Still, it’s not too early to take stock of the Obama legacy on constitutional war powers. He’ll go down in history as a “transformational” president, having completed America’s transformation into a country where “continual warfare” is the post-constitutional norm.
War: The New Normal
Obama’s 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 commitments—like the peacekeeping deployments to Lebanon and Somalia, Bill Clinton’s 78-day air war in Yugoslavia, even the decade-plus of no-fly-zone enforcement in Iraq following the Gulf War—were nonetheless territorially confined.
In the twenty-first century, however, we’ve gone permanently “kinetic.” Presidential wars are no longer limited departures from the peacetime norm. As a “war president,” Barack Obama has institutionalized—and accelerated—a 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, we’re running out of cool names for the operations we launch. The bombing’s gotten ahead of the branding: for the time being, President Obama’s 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 affirmed—although 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 Qaeda—including groups that didn’t 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 conditional—we’re 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, we’re 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 denounced—and excommunicated—ISIS. A recent statement from an unidentified “senior administration official” offers the administration’s legal workaround. Because of the group’s “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 Laden’s legacy,” ISIS fits within the AUMF, despite the “public split between AQ’s 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 administration’s 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 way—as far as the administration sees it—they’re 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 it’s one Congress, one vote, one time.
Well, maybe two times. The same “senior administration official” also insists that the“Authorization 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. hasn’t changed and we’d 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 administration’s view, information on where and with whom we’re at war can properly be withheld from the American people.
In a Senate Foreign Relations Committee hearing one year after the president’s drone speech, Sen. Bob Corker (R-TN) led the Pentagon’s 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 we’ve 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 we’re at war with could cause “serious damage to national security,” you see. That’s 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.”
It’s grimly amusing to puzzle out how this “building credibility” theory might intersect with the administration’s argument that being viewed as “the true inheritor” of the bin Laden’s 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 AQ’s heir apparent. If any particular clique’s 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 haven’t yet targeted the U.S. home front surely raises the risk that they’ll return the favor.
There’s 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: “It’s 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 war—through drones or Special Forces or troop deployments—will 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.