Matthew C. Waxman is the Liviu Librescu Professor of Law at Columbia Law School, where he chairs the Roger Hertog Program on Law and National Security. He served in senior positions at the National Security Council, Defense Department and State Department from 2001-2007.
Tomorrow is the fifteenth anniversary of the beginning of the longest armed conflict in American history. But another significant anniversary in the “Forever War” is today, September 10, for two years ago on this date President Obama announced his “comprehensive and sustained counterterrorism strategy” to defeat the Islamic State.
The United States had been bombing the Islamic State sporadically throughout the summer of 2014, under the President’s Article II Commander-in-Chief power. But at about the time on September 10 when President Obama announced the United States’ ramped-up efforts “to degrade and ultimately destroy” the Islamic State, he also shifted the legal basis for the effort to the 2001 Authorization to Use Military Force (AUMF) that had been the foundation for the conflict against the Taliban, al Qaeda, and Associates since a few days after the 9/11 attacks. Obama “welcome[d] congressional support for this effort” in that address while making clear that he did not require it. One month later, the Pentagon named the campaign “Operation Inherent Resolve.”
The inclusion of Operation Inherent Resolve under the AUMF rubric was controversial and not entirely persuasive since the Islamic State was not at that time (and has not since then been) an associated force with al Qaeda. But for two years now Congress’s long-ago approval for war against the perpetrators of the 9/11 attacks has been the legal foundation for war against the Islamic State as well—a war that, many Obama administration military officials have said, will last at least decades.
We do not fault the President for enhancing U.S. military efforts against the obvious threat posed by the Islamic State. But his decision to expand the war unilaterally on the basis of the 2001 AUMF rather than return to the Congress and the American People and insist on a new authorization for this new war was a fateful one. The claim of authority under the 2001 AUMF to fight the Islamic State took away every political incentive that the responsibility-shy Congress might have had to debate and authorize the war. And that in turn has stunted robust and extended debate about the nature of the threat the Islamic State poses and the sacrifices the nation needs to make to defeat it.
Nor have events in the world necessitated such debate. The war against the Islamic State is the epitome of President Obama’s light-footprint warfare characterized by heavy reliance on airpower (especially drones), Special Operations Forces, and cyber-operations. Light-footprint warfare takes place largely in secret, largely from a distance, and largely without threat to U.S. personnel. By design, it does not attract nearly the same level of congressional and especially public scrutiny as do more conventional military means.
Congress and the American people of course know about the war against the Islamic State, and Congress has gone along with the stealth war via what are in effect stealth appropriations for it, even while failing to approve the President’s actions explicitly. But Congress as an institution has declined the opportunity to weigh in explicitly on the President’s military efforts against the Islamic State. Deadlock over a new AUMF for the Islamic State is unlikely to be broken soon, among other reasons, because the President’s legal needs are served by a stretched 2001 AUMF, and many congressional members see possible political downside but little upside to committing themselves in a vote on an express authorization. And the authorization issue is barely discussed in any detail by the presidential campaigns.
Light-footprint warfare might be off the American radar screen, but it is still lethal and very consequential warfare. In his farewell news conference last month, Operation Inherent Resolve Commander General Sean MacFarland recounted the extraordinary intensity of the war in the previous eleven months. During that period alone, the United States and its coalition forces conducted approximately 50,000 sorties in Iraq and Syria that dropped over 30,000 munitions on the enemy (2/3 in Iraq, 1/3 in Syria), killing over 25,000 enemy fighters (in addition to 20,000 killed the year before). A DOD report stated that over two years of fighting in Operation Inherent Resolve, the United States alone has conducted 11,442 strikes in Iraq and Syria. According to DOD, three U.S. soldiers have been killed in action in Operation Inherent Resolve, and sixteen wounded.
Operation Inherent Resolve is but one of many intense operations against Islamic terrorists around the globe, including Operation Freedom’s Sentinel (the military operation in Afghanistan that in 2014 succeeded Operation Enduring Freedom, which began in that country in 2001), Operation New Dawn (the name of the successor operation in Iraq since 2010, which began as operation Iraqi Freedom in March 2003), and scores of stealthier reported operations by Special Operations Forces and American intelligence agencies around the globe. Almost all of these operations are now being conducted pursuant to the 2001 AUMF. And though there are thousands of U.S. troops in both Afghanistan and Iraq, almost all of these operations are conducted in light-footprint fashion, with (thankfully, so far) relatively few American casualities.
What are we to make of President Obama’s dramatic extension two years ago of indefinite war of this intensity, without debate or express authorization by Congress, and with little engagement by the American people? We recently addressed this question in an essay on ”The Legal Legacy of Light-Footprint Warfare.” In that study, we show that the extension of the AUMF to include the Islamic State was one of several significant legal moves by the Obama administration that establish very broad authority for light-footprint but high-potency military operations.
As we noted in conclusion, some argue that there is little to worry about here from a constitutional perspective:
It may be that Obama’s light-footprint warfare falls within this tradition. Neither Congress nor the public opposes Obama’s use of light-footprint military tools —especially against terrorist threats—that don’t cost the United States heavily in blood or treasure compared to President Bush’s military adventures. The one time President Obama considered a military intervention that the U.S. public did not appear to support —the threatened bombing of Syria in 2013—he backed down. In many respects, President Obama has been less hawkish than the Republicans who have controlled both Houses of Congress since 2014. Especially in an era marked by fierce partisan gridlock in other contexts, the formalities of overt congressional approval might matter less than the reality of broad congressional and public support for the president’s military actions.
This is a respectable position with a long pedigree in American history. But we lean toward what we described as a “more pessimistic view” that recognizes “light-footprint warfare’s costs to U.S. democracy and its risks to a politically sustainable foreign policy over the long run.” As we explained:
The problem is easy to state, but solutions are hard. The most obvious partial solution is to have Congress engage with and approve and take partial responsibility for the longest war in American history. But we are at the moment stuck in an unfortunate equilibrium in which both Congress and the President have little real interest or incentive in an extended debate on war strategy and war authorization.
And so for the foreseeable future, as we wrote, “the sprawling, indefinite, and stealthy light-footprint warfare will continue apace for years and years,” enabled to a large degree by President Obama’s unilateral stretch of the AUMF to include the Islamic State.