Congress should update its military-force authorization.
We remain a nation at peril, but are we still a nation at war?
In his State of the Union speech, President Obama signaled, yet again, that the war in Afghanistan is effectively over. Soon, in fact, it will be over by any honest measure: The presence of American troops will be halved to 34,000 in the coming months, and erased entirely by December 31, 2014. On this arbitrarily chosen date, the president claims, we will “achieve our core objective of defeating the core of al-Qaeda.”
This was just rhetorical fluff. The core of al-Qaeda will still be intact, even resurgent. It will simply have moved on to more hospitable climes such as northern Africa — thanks in no small part to a windfall of new arms from Libya, courtesy of Obama’s unprovoked, unauthorized, and strategically disastrous war to topple the Qaddafi regime.
What, moreover, has Afghanistan got to do with “defeating the core of al-Qaeda”? We have been told for years that al-Qaeda has virtually no presence in Afghanistan. It has been a very long time since the mission of our troops there was to defeat al-Qaeda’s core. For several years, their mission has been incoherent: Prop up the ramshackle and often hostile sharia government we have birthed in Kabul, while simultaneously staving off and negotiating with the Taliban. You may think, as I do, that these are futile objectives and that it is irresponsible to put our troops in harm’s way for them. Or you may believe that, though difficult, they are worthy goals. One thing you cannot credibly believe, though, is that these are the aims for which we went to war in 2001.
It is essential to remember those aims because it is they, and they alone, that determine whether we are still, constitutionally and legitimately, a nation at war. That is a very real question. It is one we must confront because on it hinges such crucial questions as whether the intensified drone campaign — the subject of heated ongoing debate — is lawful.
Understand: Though war is political act, it is also a formal legal reality. Its existence and legitimacy, in our constitutional system, are up to Congress.
War is not a matter of rhetoric. Banter that “we remain a nation at war” is no more meaningful than claptrap about being at “war” with poverty or drugs. Many of us have long objected to the term “War on Terror” exactly because it is rhetoric that ducks identification of an actual enemy. As such, it invites such dubious mission creep as “Islamic democracy”–building in Afghanistan and elsewhere. If, in going to war, you don’t focus on the defeat of a concretely identified human enemy, all manner of foolishness can become policy under the guise of defeating a rhetorical abstraction such as “terror.”
Nor is war an exercise in deductive reasoning. The nation is not legitimately at war just because politicians and pundits can look around and draw the conclusion that the United States has enemies in the world. Merely to have enemies is not to be at war. We always have enemies — foreign countries and factions that mean us ill. North Korea is our enemy, as is Hezbollah, but we are not at war with them.
In the same way, the international jihadist network spearheaded by al-Qaeda was our enemy before September 11, 2001. In fact, prior to that infamous date, al-Qaeda repeatedly declared itself to be at war with us. It even acted on these declarations by, for example, attacking our embassies in east Africa in 1998 and the U.S.S. Cole as it docked in Yemen in 2000. Here, however, is the salient fact: We were not at war with al-Qaeda, regardless of their jihad against us. This was unwise on our part, but that does not make it any less true.
What changed after 9/11 was not our rhetoric or the unremarkable fact that we had enemies. What changed, what took the nation to war, was the formal Authorization for Use of Military Force by Congress.
It was the 2001 AUMF, an act of Congress’s constitutional war power, that vested the commander-in-chief with authority “to use all necessary and appropriate force.” It was the 2001 AUMF that triggered combat operations in Afghanistan, where al-Qaeda was then headquartered. The AUMF is what rendered legitimate such wartime tactics as subjecting enemy combatants to drone strikes, indefinite detention, and military commissions.
Moreover, because the AUMF spelled out no geographical boundaries, it authorized combat operations anyplace in the world where the enemy could be found. Here, however, is where things get fuzzy because of the vast difference between our war rhetoric and what the AUMF actually says about the enemy.
The enemy is not “terror.” And, contrary to popular belief, the enemy is not even al-Qaeda. As I reiterated in last weekend’s column, the AUMF does not proclaim an open-ended license to attack anyone affiliated with al-Qaeda. In fact, the AUMF does not mention “al-Qaeda” at all. Have a look at it, here. It defines the enemy as follows:
Those nations, organizations, or persons [that the president] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.
The commander-in-chief’s license to wage war is plainly circumscribed by the 9/11 atrocities. Of course, that does not make the AUMF what any sensible person would call “narrow.” After all, it trusts the commander-in-chief to judge which “nations, organizations, or persons” were complicit in the 9/11 operation — no additional congressional findings are needed.
While one person’s judgment can be quite elastic, the president’s need not be in order to make the AUMF extremely capacious. It is broad on its own terms. For example, al-Qaeda is the organization that was principally complicit in 9/11, and thus it may be attacked anyplace, anytime. The AUMF also undoubtedly authorizes warfare against the Taliban, al-Qaeda’s former host, even though the president, in his discretion, chooses not to regard the Taliban as an enemy — indeed, our government has not even designated the Afghan Taliban as a terrorist organization, much less declared war against it. In addition, the AUMF would authorize war against Iran. The 9/11 Commission all but expressly implicated the mullahs in the 9/11 plot, despite the disinclination of President Obama, of President Bush before him, or of Congress to connect those dots.
Nevertheless, as broadly as the 2001 AUMF could be interpreted, it is not boundless. It clearly requires any use of force to be rooted in 9/11. Only those who plotted and executed the 9/11 attacks, or who harbored those who did so, are legitimate targets.
Some claim there is more play in the AUMF’s joints. They point out that the AUMF goes on to explain Congress’s desire “to prevent any future acts of international terrorism against the United States.” But this is an explanation of Congress’s motive for the authorization spelled out in the AUMF; it does not expand that authorization. Of course it is true that, 9/11 aside, Congress does not want terrorists to attack us. But that does not alter the fact that, in the AUMF, Congress permitted combat operations only against terrorists culpable for 9/11, not against any terrorist who might ever attack us. Even the reference to “future acts of international terrorism” seized on by expansive constructionists is expressly limited to acts that might be committed “by such nations, organizations or persons” complicit in the 9/11 attacks or in the harboring of 9/11 attackers.
What does all this mean for drone attacks, the hot topic du jour? In recent days, the debate over these targeted killings — and the collateral killings that inevitably attend them — has strayed from its original focus on the assassination of American citizens who collude with al-Qaeda. Attention is now drawn to an equally urgent subject: the Obama administration’s startling intensification of the drone campaign.
Obama may have campaigned in 2008 as the candidate who would return us to the Clinton era, when terror attacks were deemed crimes suitable for civilian prosecution rather than acts of war fit for military response. As president, though, Obama has authorized hundreds more drone attacks than did his supposedly war-mongering predecessor. In addition, he has dramatically extended the frontiers of the campaign, which now include not only Pakistan and Yemen but also a vast swath of the Maghreb.
Nor is that all. This week, Brandon Webb and Jack Murphy, two former special-ops warriors, published Benghazi: The Definitive Report. If the book is accurate, Obama delegated to John Brennan, his top counterterrorism adviser and nominee for CIA director, unfettered authority to conduct a covert war against terrorists in northern Africa — an enterprise conducted outside the normal chain of command and without the knowledge of relevant American diplomatic and intelligence officials.
Let’s put aside for the moment that, had George Bush done something like this, only the peal of impeachment bells would have silenced the media outrage. The pertinent question is: Who are the targets of this alleged covert war?
Yes, there are heinous jihadists in Mali, Algeria, Libya, Sudan, Eritrea, Somalia, and other African badlands. The problem is that the vast majority of them had nothing to do with 9/11 and their connections to al-Qaeda are murky at best. The problem is that, while some of them approve of al-Qaeda’s worldwide jihad, most of them lack the means, and many the desire, to attack the United States. Thus, according to at least some knowledgeable military and intelligence veterans, our drones are catalyzing threats against the United States that would not otherwise exist.
Do not get me wrong. We have seen the wages of abiding safe havens for al-Qaeda. In Afghanistan and Sudan, the network set up shop, trained recruits, and convinced many who’d been aggrieved locally to terrorize globally. When al-Qaeda and its affiliates establish these redoubts, as they are now trying to do in northern and eastern Africa, they plot mass-murder attacks against the United States and American targets throughout the world. That is why we must not allow that to happen anyplace. Naturally, we do not want to make the threat against us worse than it is. But ignoring it is not an option. The logic of jihadist ideology is global aggression, even if many of its adherents are not quite so ambitious . . . at least for the time being. We are therefore better off striking jihadist strongholds than refraining from striking them. The additional enemies we may inspire are more than offset by those our resolve discourages.
So President Obama is right to want our extraordinary military capabilities trained on emerging jihadist hubs — and I applaud him for recognizing that effective national security need not entail extravagant nation-building projects that do not make us safer. But to have legitimacy, drone attacks and other special-operations initiatives against our jihadist enemies must be authorized by Congress. The Constitution calls for war to be waged by the commander-in-chief, but it must be approved by the sovereign — and that is not the president. It is the American people, acting through their representatives in Congress.
Congressional authorization is not just what our law demands, it is what sound policy dictates. Under the Obama administration’s unilateral approach to war, on some days we are targeting jihadists in Abbottabad and in villages along the Gulf of Aden, while on other days we are somehow aligning with jihadists in Benghazi and Cairo (and maybe Aleppo).
The end of the war in Afghanistan is far from the end of the threat to America. It is past time to specify who the enemy is. It is past time to make clear that, while we have no desire to occupy foreign lands, we are resolved — as a nation, not just as a presidential administration — to pursue and defeat our jihadist enemies, wherever they are and however long it takes.
— Andrew C. McCarthy is a senior fellow at the National Review Institute and the executive director of the Philadelphia Freedom Center. He is the author, most recently, of Spring Fever: The Illusion of Islamic Democracy, which is published by Encounter Books.