Law in the Time of Endless War

August 17, 2015 Topic: Security Tags: warObamaCounterterrorism

Law in the Time of Endless War

President Obama verbally aligns himself with critics of his counterterror policies—while continuing to carry them out.

“This is, in my view, an illegal war right now.”

Senator Tim Kaine (D-Virginia) spoke those words last week, at a public event at the Cato Institute. He was referring to America’s military campaign against the Islamic State, which, as of this past Saturday, has been going on for one full year. According to U.S. Central Command , in that time the U.S.-led coalition has conducted almost six thousand airstrikes in Iraq and Syria, and 3,300 U.S. troops are currently deployed to Iraq as part of Operation Inherent Resolve.

And, as Kaine noted, Congress has yet to vote to authorize this war. Instead, the White House has argued that the Islamic State is covered under the terms of the 2001 Authorization for Use of Military Force (AUMF). That legislation authorizes the president to use force against “those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.” At Cato, Kaine—a member of the president’s own party who serves on both the Senate Armed Services and Foreign Relations Committees—described the White House’s legal rationale as “ridiculous.”

What was most notable wasn’t the content of what Kaine said. Indeed, he has made this argument numerous times previously, starting even before the U.S. mission in Iraq and Syria began. Rather, what was most striking was the sense of resignation surrounding the event. Gene Healy, introducing Kaine, called the senator’s commitment to preserving the role of Congress in issues of war and peace “increasingly rare” and “old-fashioned.” Healy also predicted that “it’s a pretty sure bet that this unhappy anniversary will get far less public attention than the clown-car wreck of the first GOP primary debate tonight.” (He was, of course, correct.)

Kaine rightfully blasted his colleagues in Congress for their passivity and for their failure to vote on a new authorization thus far. Yet it’s the executive branch’s conduct that deserves particular attention. The United States began its operations against the Islamic State last August. The White House, as noted above, has maintained that it already has the legal authority to wage this conflict under the 2001 AUMF (and under the 2002 AUMF that authorized the Iraq War). It sent its proposed draft text for an AUMF against the Islamic State to Congress this February—six months after the operation had already started—and has not made any significant effort to try to win its passage. The Obama administration has stated repeatedly that it would welcome a vote in Congress to express support for the ongoing mission. But it has been equally clear that it doesn’t see a new congressional authorization as necessary, and that Operation Inherent Resolve will go on whether Congress votes for it or not.

So, heads, we stay at war; tails, we also stay at war. Given this choice, is it really any surprise that Congress hasn’t acted?

All of this is emblematic of the Obama administration’s larger approach to questions of law and national security. In May 2013, President Obama gave a landmark speech at the National Defense University on his counterterrorism policy. Afterward, Benjamin Wittes remarked that the “unifying theme” of that speech was that “it was an effort to align himself as publicly as possible with the critics of the positions his administration is taking without undermining his administration’s operational flexibility in actual fact.”

The use of the 2001 AUMF as the legal basis for Operation Inherent Resolve represents a classic example of this approach. Obama stated in his NDU speech that he wanted to engage “Congress and the American people in efforts to refine, and ultimately repeal, the AUMF’s mandate.” He has reiterated this pledge as recently as this year. His administration, however, has done exactly nothing toward this end. Indeed, it has since expanded the AUMF’s mandate by using it as the legal basis for its military actions in Iraq and Syria. And it has even been reported lately that Obama has authorized using force against the regime of Bashar al-Assad as well if it were to come into direct conflict with U.S.-backed forces in Syria. At Cato, Healy said that the AUMF has become “an all-purpose enabling statute for presidential wars.” It would be hard to disagree.

Or consider the prison at Guantánamo Bay. In his first week in office in 2009, Obama issued an executive order calling for the facility to be shuttered within a year. Six and a half years later, the prison remains open, with 116 detainees kept there as of this writing. Obama continues to decry the prison as a moral outrage, saying this March, for example, that “it’s not who we are as a country.” But his administration still embraces the practice of indefinite detention that is Guantánamo’s most notable characteristic. Even if Congress were to drop all of its objections and the prison were to be closed, under the administration’s own stated plans, 32 of the prisoners would still be designated for indefinite detention without charge or trial.