Reining In Our Illegal and Unnecessary Warfare

Politico published a story yesterday with some encouraging news that the Biden administration is interested in repealing existing authorizations for the use of military force (AUMF) and creating a “narrow and specific framework” to govern U.S. military actions against foreign terrorist groups. Repealing the 2001 and 2002 AUMFs is certainly the right thing to do, but it would be a serious mistake for Congress to pass a replacement for them. If we wish to end endless war, we have to stop fighting it, and that means recognizing the essential futility of the “war on terror” itself.

Presidents tend to interpret authorizations as broadly as possible, so any limits that Congress puts in a new authorization will be ignored or stretched beyond recognition until they make room for the desired military action. It seems absurd that the U.S. justifies military action in Iraq, Syria, and Somalia in 2021 on the basis of an authorization of force passed twenty years earlier in response to attacks that had nothing to do with those countries or the groups that are being targeted, but this is how the original authorization has been expanded over time to include whatever it is a given president wants to do. According to the Costs of War Project, there are 12 countries around the world where U.S. troops are in combat or potentially in combat through surrogates, and there are still seven countries where the U.S. conducts airstrikes and drone strikes. As long as the 2001 AUMF is on the books, these missions seem all but guaranteed to continue in perpetuity.

When presidents use these misinterpretations to provide legal cover for the military attacks they order, they dare Congress to stop them and Congress always rolls over. Putting time limits on a new authorization might force Congress to revisit the issue periodically. That could deny a future president renewal of the authorization, but it is more likely that Congress would end up acting as little more than a rubber stamp. Withdrawing authorization from an ongoing war could prove to be as politically difficult for members of Congress as voting to suspend funding for current operations.

Repealing outdated and unwanted authorizations would be a significant improvement over the status quo, but as we have seen in the last few weeks presidents will still make extraordinary claims about their war powers under Article II of the Constitution. As long as we have troops deployed on open-ended missions overseas, these claims serve as a huge loophole that lets presidents order illegal, unauthorized military attacks in the name of “self-defense.” The Biden administration said that the president ordered an airstrike on an Iraqi militia base in Syria pursuant to his Article II powers as commander-in-chief and Article 51 of the U.N. Charter that permits using force in self-defense. Oona Hathaway has explained how the Biden administration’s claims don’t hold up very well:

But while more intellectually honest, the Biden administration’s reliance on bare Article II authority is still deeply problematic. The U.S. personnel defense argument has expanded significantly over the years. The initial, not unreasonable, idea was that the president not only had the power to protect the United States, but U.S. citizens abroad as well. In 1992, for example, the Office of Legal Counsel justified the president’s decision to commit troops to secure the humanitarian assistance effort in Somalia in part on the basis of the president’s authority to protect the lives of Americans overseas—in that case persons involved in the humanitarian relief effort. It has since expanded to cover not only civilians but also members of the U.S. military, and now, apparently, contractors. In 2017, the Trump administration even tried to throw the U.S. force self-defense shield over the non-state partner forces of the Syrian Democratic Forces. Placement of U.S. forces in a conflict zone thus becomes the camel’s nose under the tent, inevitably giving rise to endless radiating additional claims of authority to use force in “self-defense” when those forces and those providing support or assistance to them inevitably come under threat. Indeed, Bill Barr once endorsed a radical “force protection” policy that would have justified a first strike to protect pre-positioned troops.

Even more troubling, if our strikes’ primary effect is to provoke a strike back—a strike on those very same forces we mean to be defending—then we run into the same problem as with the international law justification. Self-defense is not really self-defense if instead of preventing a threat, it precipitates it.

The case that the airstrike was illegal under international law is strong. Adil Ahmad Haque wrote last week:

The U.S. airstrikes almost certainly violated international law, for two basic reasons. The airstrikes did not repel an ongoing armed attack, halt an imminent one, or immediately respond to an armed attack that was in fact over but may have appeared ongoing at the time….And the airstrikes were carried out on the territory of another State, without its consent, against a non-State actor (or two, or more)….These two reasons, combined, are decisive. It cannot be lawful to use armed force on the territory of another State when it is clear that no armed attack by a non-State actor is ongoing or even imminent.

In addition to being illegal, it also failed to achieve the administration’s stated purpose. Following the airstrike in Syria, there was a rocket attack on the al-Asad air base in Iraq. One civilian contractor died of a heart attack suffered during the attack, but there were no other reported casualties. The illegal airstrike that was supposed to be “deescalatory” prompted a new attack, as many observers predicted it would. Biden’s airstrike “restored deterrence” no better than any of Trump’s, and instead of preventing further attacks it practically guaranteed that there would be another one. The long-term solution to these recurring attacks is not to engage in illegal tit-for-tat reprisals, but to bring U.S. troops out of Iraq where they are no longer needed or wanted and to reduce tensions with the militias’ patron by salvaging the Joint Comprehensive Plan of Action and ending the economic war that our government has been waging on the people of Iran for the last three years. U.S. withdrawal from Syria should take place at the same time.

As David Sterman has explained in his recent report for New America on defining endless war, it is primarily the continued pursuit of the same objectives since 2001 that keeps the U.S. ensnared in endless war. Passing a more precise and narrow AUMF might prevent some of the executive overreach that we have seen in the last twenty years, but unless we give up on the unrealistic goals of achieving the “enduring defeat” of various jihadist terrorist groups future administrations will stretch any authorization to cover whatever action they want to take. Replacing existing authorizations with a more narrowly-tailored one might seem like an improvement, but it would actually further entrench and institutionalize some form of forever war and make it even harder to undo in the future. We need to reject the idea that the U.S. has to be in the business of policing and “stabilizing” other countries. We need to recognize that our security does not depend on “fighting them over there.” If we want to rein in illegal and unnecessary warfare, we need to rein in the ambitions of our foreign policy.