Perhaps further reform of Title 50 of the U.S. Code is in order. One could, for instance, see greater clarification of missions that are undertaken by other agencies of the U.S. government, such as the Central Intelligence Agency, the Federal Bureau of Investigation, the Department of Homeland Security or the Drug Enforcement Agency, that might result in combat situations and/or the need for U.S. military forces in a supporting role, as not rising to the level of war. U.S. military forces engaged in stabilization or reconstruction missions might also be authorized to engage in combat activities to secure their positions from attack, whether by state or nonstate actors. Given that the administration cited enforcement of a Security Council resolution as justification for U.S. involvement in Libya, Congress could reopen the debate over Article 43 of the UN Charter, which calls on all member-states “to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security”—and offer draft language which would spell out the conditions under which U.S. forces could and should be committed to enforcement of Security Council resolutions.
But at a minimum we should recognize the stakes of the debate. There is room for legitimate debate over whether current U.S. support for operations in Libya, or a drone strike in the Maghreb, constitutes an act of war. But it seems inarguable that many of the most significant conflicts in our recent history—the Vietnam War, the Korean War and the 2003 invasion of Iraq—would fall into any reasonable definition of war. Since counterterrorism actions appear likely to play a prominent role in U.S. national-security policy for many years to come, the tension Nichols identifies between the president’s and Congress’ role cannot be ignored.