Joint Special Operations Command launched four Hellfire missiles into a convoy in central Yemen in December, killing 12 people. U.S. officials initially claimed they were targeting Shawqi Ali Ahmad al-Badani, an alleged Qaida operative, and even Human Rights Watch acknowledged that some terrorists may have been present. But last week, an official report by the New York-based advocacy group concluded the missiles actually hit a Yemeni wedding procession bringing the bride and family members to the groom’s hometown, and that very likely “some if not all those killed and wounded were civilians.”
In truth, no one really knows what happened that day in Yemen, or who the enemy really was. The Obama administration, of course, would not discuss the details of the covert operation—and it has done little publicly to justify the drone attack. The news of the Human Rights Watch report pinged through the Washington echo chamber for a day, then faded away—just the latest wisp of information in a shadowy conflict that President Obama pledges to end but seems utterly unwilling to close.
Judging from the polls, a weary, inward-looking American public has long since stopped caring much about what used to be called the “war on terror,” especially compared with issues like economic stagnation, or gay marriage, or immigration. What began as one horrific attack 13 years ago and a simple, 60-word Authorization for the Use of Military Force three days later has morphed all but unnoticed into a war with no name or parameters—against an enemy that the government will no longer even officially identify, on battlefields that didn’t exist when the measure hurriedly passed Congress.
And as the Yemen strike suggests, the war hardly appears to be winding down. Nor do U.S. forces seem to be getting much better at avoiding “collateral damage.” The grave but very real danger is that this strangest of wars willnever end, certainly not before the expiration of Obama’s second term. And his successors may be left with nearly the entire unresolved mess: an open-ended war authorization and inchoate rules for drone and special operations, the promised-but-never-carried-through closing of Guantánamo Bay, and a National Security Agency that’s still not sure whom or what it can spy on.
No one has been more aware of this probability than the president himself, who has regularly warned that America must get off a “perpetual wartime footing,” declaring in a landmark speech last year, “We must define the nature and scope of this struggle, or else it will define us.… Unless we discipline our thinking, our definitions, our actions, we may be drawn into more wars we don’t need to fight, or continue to grant presidents unbound powers.”
And yet that’s what is happening. Throughout the violence-torn Middle East and Central Asia, a reborn al-Qaida is sprouting new affiliates like mythical dragon’s teeth and defining the struggle anew. Meanwhile, the Obama administration remains conflicted over policy and unsure how to proceed—as evidenced by another mysterious news leak recently, one that indicated the government was locked in an intense internal debate over whether to kill an American citizen overseas (rumored to be a jihadi in Pakistan). Despite Obama’s pledge nearly a year ago, in that widely covered May 2013 speech, to “refine, and ultimately repeal” the AUMF, sources inside the administration and on Capitol Hill say serious negotiations to get it done have not even begun with this ever-recalcitrant Congress.
Leading voices on Capitol Hill say they are utterly mystified by the White House’s inaction—and are getting more and more frustrated by it. “If anyone understands what their policy is, please send me a note. It has been very confusing,” Rep. Mike Rogers, chairman of the House Intelligence Committee, told National Journal.
Barack Obama, in other words, appears to lack the will to turn off the war machine. His long-stated aim to be the president who ended two wars for good is very likely to go unmet. Worse, he will leave behind a struggle the country won’t be constitutionally or morally equipped to fight. Rather than developing a “code” for future presidents—as he’s said he wants to do—this president could well end up leaving his successor an open-ended license to conduct permanent drone warfare, or to place American boots on the ground anywhere in the world.
Rogers and some other critics say the president may even be in denial about the ongoing reality of the war, perhaps because he’s a little too eager to “complete his narrative” about decimating al-Qaida. “Just because we got Osama bin Laden doesn’t mean the organization went away,” Rogers says. “When someone is shooting at you, and you stand up and decide the shooting is over, that doesn’t mean they stop shooting at you. And it is incredibly naive to believe that because you say the war on terror is over, [the terrorists] believe it is over.” To focus on the inroads against “core” al-Qaida in Pakistan while failing to come up with set rules of engagement against newer affiliated groups elsewhere, Rogers says, is “like saying the McDonald’s in Michigan is different than the headquarters in Illinois. It’s the same food, the same goals, the same ends.”
Obama will also bequeath to his successor another almost Orwellian oddity, one that may be unprecedented in American history. The United States is now at war with an enemy that it will not officially acknowledge or name. As new jihadist groups spring up in war-torn Syria and other emerging safe havens, the administration has made the list of so-called associated forces of al-Qaida classified.
The official reason is that the U.S. military and intelligence apparatus doesn’t want to tip off the new bad guys that they’re about to be atomized in a drone strike or laser-targeted by SEAL Team Six. But some longtime U.S. strategists, such as former National Security Adviser Brent Scowcroft, worry about the lack of clear rules governing this latest evolution in what Harold Koh, Obama’s former State Department general counsel, calls “the Forever War.” “There is something very troubling about how we have become policeman, judge, jury, and executioner, all rolled up together,” Scowcroft says.
Former participants in the war on terrorism, such as John Bellinger, who was chief counsel to the National Security Council on 9/11, finds the conflict’s new, amorphous shape to be “extremely odd.”
Says Bellinger: “I certainly understand that groups may change and people may move from group to group. And our people may not want to alert the groups being targeted. But I don’t think that prevents one from having a basic list [of enemies], at least with an asterisk at the end indicating there may be others.” The main problem, he adds, is that “as the AUMF has gotten longer and longer in the tooth, the debate inside the administration is getting more and more complex as to whether some group or some person is actually associated with al-Qaida,” the only group with which America is still officially at war and to which the AUMF specifically applies.
So while Obama might be reluctant to apply force beyond drones and special-operations teams in parts of the Mideast, Central Asia, and Northern Africa, it’s entirely plausible that a less cautious commander in chief could decide to invade Syria or reinvade Afghanistan or Iraq, or to deploy drones less discriminatingly—all by relying on an outdated war authorization. Unless Congress writes new rules. And Obama signs them. Something neither appears willing to do.
The administration counters that it has already developed the “clear guidelines, oversight, and accountability” that Obama promised last year. Still, the White House has barely engaged Congress. “At this stage, we are discussing this issue and look forward to engaging the Congress more robustly as we refine our thinking,” National Security Council spokeswoman Caitlin Hayden told National Journal.
BENDING AND BREAKING
The administration’s inaction stems in part from the way Obama has boxed himself in. He has said he doesn’t want to sign a new congressional force authorization that may be better equipped to deal with modern terrorism threats, because he worries about prolonging the war. But without one, the administration has been forced to stretch and distort the 9/11 authorization to new fronts in Somalia and Yemen in ways that could encourage another president to push the legal envelope even further.
The result is that the war, as it stands, is being fought in a state of legal limbo, one that worries both conservatives, who favor rewriting the 9/11 AUMF, and liberals, who favor repealing it. And it has given administration officials no choice but to forge ahead, sometimes seemingly making up the rules as they go—as evidenced perhaps by the December strike in Yemen.
That internal debate achieved almost tragicomic dimensions recently when The Washington Post reported that following the decision of Ayman al-Zawahiri, the nominal leader of al-Qaida’s core in Pakistan, to excommunicate an ultraviolent group calling itself “Islamic State in Iraq and Syria” or ISIS, U.S. officials were weighing whether to drop that group from the U.S. enemies list. That, says critics, is the ultimate mistake in allowing al-Qaida to define the conflict. “It’s conceivable that al-Qaida might ‘fire’ them publicly while privately continuing to have lots of dealings with them,” Bellinger says.
The only answer to the evolving new threat, these critics say, is to update the authorization to address the changing nature of al-Qaida and its affiliates. Obama appears to be leery of trying with a Congress that, even counting fellow Democrats, most recently refused him approval for strikes on Syria in retaliation for chemical-weapons use.
Given the choice between repeal and leaving the current law in place, most in the White House and Congress have opted for letting inertia carry the day. “I was one of the people who kicked off the debate four years ago that the AUMF ought to be revised,” says Bellinger, who also served as general counsel to the State Department in the mid-2000s when the first rules for warfare against terrorist groups were being discussed. “It ought to fit what we’re doing now. A 60-word statute written by Congress three days after 9/11 needs to be more precise. But that requires good government, and I’ve come to believe it’s impossible for our Congress to do good government. It’s probably better just to leave this ancient statute on the books.”
In a series of speeches dating back two years, administration officials have sought to point the way to an eventual end to the war by distinguishing “core al-Qaida” or “associated groups” that are “organized” and specifically target Americans from other less strategic threats. Among the latter are “lone wolves” along the lines of the Boston Marathon bombing suspects or new extremist elements emerging in the aftermath of the Arab Spring, which may be locally or regionally focused in their aims, rather than organized to target America.
Koh, now a professor at Yale, specifically excluded lone terrorists as enemies under the AUMF in a speech at the Oxford Union last fall. “To be clear, the United States is not at war with any idea or religion, with mere propagandists or journalists, or even with sad individuals—like the recent Boston bombers—who may become radicalized, inspired by al-Qaida’s ideology, but never actually join or become part of al-Qaida,” Koh said. “As we have seen, such persons may be exceedingly dangerous, but they should be dealt with through tools of civilian law enforcement, not military action.”
Koh and other administration officials cite a speech in November 2012 by Homeland Security Secretary Jeh Johnson, then the Pentagon’s general counsel, who set out the clearest criteria yet for how the war will end. “We have publicly stated that our enemy consists of those persons who are part of the Taliban, al-Qaida, or associated forces,” Johnson said, also at the Oxford Union. “We have publicly defined an ‘associated force’ as having two characteristics: 1) an organized, armed group that has entered the fight alongside al-Qaida, and 2) is a cobelligerent with al-Qaida in hostilities against the United States or its coalition partners.”
Then, in a passage that Koh approvingly quoted, Johnson said, “There will come a tipping point … at which so many of the leaders and operatives of al-Qaida and its affiliates have been killed or captured, and the group is no longer able to attempt or launch a strategic attack against the United States, such that al-Qaida as we know it, the organization that our Congress authorized the military to pursue in 2001, has been effectively destroyed.” And the war would be expected to end, at which point the AUMF would ostensibly be no longer in effect.
Closing such a chapter wouldn’t mean that a future administration couldn’t act aggressively to respond to threats. Constitutional lawyers argue that even without the AUMF, the president possesses the power to act in America’s self-defense with lethal force—one reason Obama may be willing to see the authorization repealed. The generals do not seem to agree, although that’s hardly surprising. “The CIA and JSOC are always looking for ways to justify their jobs. One way to do it is to identify new terrorists,” says Scott Horton, a human-rights lawyer.
But the Obama administration has made it easier for future presidents to make war under those powers as well, by expanding the concept of what constitutes an “imminent” threat to the United States, which allows the president to respond without congressional approval under Article II of the Constitution. The new term being used: “elongated imminence,” which means that a president doesn’t have to deem the country under immediate threat of attack before acting on his or her own.
What remains utterly unclear is how such a broad criterion should be defined. What does “effectively destroyed” mean? And the administration has been sending mixed signals on how long this might take, as well as who the enemy is. At a congressional hearing last year, Michael Sheehan, the assistant Defense secretary for special operations and low-intensity conflict, said U.S. military operations against al-Qaida and associated forces are “going to go on for quite a while … beyond the second term of the president…. I think it’s at least 10 to 20 years.”
That little-noticed hearing of the Senate Armed Services Committee vividly laid bare the potential danger that stems from leaving the current AUMF in place. It became evident from the testimony of several senior administration officials that the military believes it has all the authority it needs to employ American might in any global hot spot it chooses as long as some tenuous connection to al-Qaida exists—a view that is at odds with what the administration has said publicly.
For example, when Sen. John McCain, R-Ariz., asked Robert Taylor, the Pentagon’s general counsel, whether the AUMF could be read to authorize U.S. lethal force against al-Qaida’s “associated forces” in countries such as Mali, Libya, and Syria, Taylor responded: “On the domestic law side, yes sir.”
Sen. Lindsey Graham, R-S.C., followed up by asking whether the AUMF allowed the president to send troops into Yemen and the Congo. Sheehan answered affirmatively, and then Sen. Joe Donnelly, D-Ind., asked if the U.S. could use the AUMF to go after the al-Nusra Front in Syria. Yes, Sheehan replied, “if we felt they were threatening our security.”
The Pentagon officials were unanimous in asserting to the panel that the military needed no further refinement in the AUMF to conduct operations. And Sen. Angus King, the independent from Maine, quickly grasped why. “You’re saying we don’t need any change, because of the way you read it, we can do anything…. The way you read it, there’s no limit.”
Writing about the hearing for the blog Lawfare, Jack Goldsmith, a former lawyer in the George W. Bush Justice Department and an expert in national security law, said it “made clear that the Obama administration’s long insistence that it is deeply restrained under the AUMF is misleading and at a minimum requires much more extensive scrutiny.”
But the hearing revealed another worry about the prosecution of the Forever War. When Donnelly asked Sheehan if the United States had determined whether al-Nusra was, in fact, a threat to national security, Sheehan declined to answer. “I don’t want to get in, in this setting, the decision-making we have for how we target different groups and organizations around the world,” he told the senator.
Pressed, the Defense officials ultimately agreed to provide the committee with a list of groups worldwide the administration believes to qualify as “associated groups” under the AUMF. But that list, to date, remains classified. The committee refused a National Journal request to provide it or even to say how many groups are listed on it.
It means that the United States is now in the 13th year of a conflict with an enemy that can shift and morph endlessly, vanishing in one spot, reemerging in another. The secrecy undermines what was viewed as a key benefit of the authorization when it was passed—that it would provide a level of transparency about American military objectives. “The AUMF put the world on notice,” says Jens Ohlin, a professor at Cornell Law School who has called for the law to be modified to specifically incorporate ISIS operating in Syria. And even Koh, who has defended the administration’s practices since returning to Yale, slammed it for its tendency to work in the shadows. “This administration has not done enough to be transparent about the legal standards and the decision-making process that it has been applying,” he said at Oxford.
The worry goes beyond disclosure. The definition of “associated groups” under the AUMF is being yanked and stretched in ways that may not have been envisioned more than a decade ago. Key to the administration’s interpretation of the law has been the concept of “cobelligerency.” For a group to be a legally valid target of American operations, it must be an affiliate of al-Qaida and have declared the U.S. to be a target of hostilities.
But what about groups that arise long after the core of the al-Qaida that plotted the 9/11 attacks has been “decimated”—to use the president’s word? The AUMF conceivably could provide cover for an endless war against a series of regional successor groups, some worry—including groups whose intentions toward the United States may be less than clear or may oscillate with changes in leadership or direction. At the Armed Services hearing, Taylor, the Pentagon lawyer, was asked by Sen. Tim Kaine, D-Va., whether it was the legal position of the Obama administration that “even groups or individuals that had nothing to do with the attacks, once they become associated with al-Qaida 25 years from now, are nevertheless covered by the current language of the AUMF?”
“I don’t want to say 25 years from now,” Taylor replied. “But today, yes.”
It is illustrative of the ambiguity created by that authorization that today, some fear that the AUMF provides the government too much license around the world, while others fear it now falls short and lacks flexibility. But critics on all sides charge that the Obama administration—and, by extension, the military—oppose a modification of the authorization because doing so would limit the almost total discretion held now by the executive branch, which in the context of the ongoing war has exclusive authority to define the enemy, deciding which groups are “associated” and which are not.
“Advocates of strong unilateral power in the executive branch may not want to see a congressionally crafted standard here,” says Ohlin, mindful of the wide latitude the statue could give a future administration. “When you’re talking about constraining the president, you’re not talking about constraining this president.”
For Congress to be able to act as a check on the executive branch’s power to define the scope of the conflict, there must be some consensus on the Hill for moving forward. That remains elusive—and the administration’s unwillingness so far to engage on the issue has frustrated some in both parties. “All I can speculate is that [Obama] wants a completely free hand,” says Rep. Mac Thornberry, a Texas Republican who chairs the House Armed Services’ Intelligence, Emerging Threats, and Capabilities Subcommittee.
Twice, in 2011 and 2012, House Republicans attempted to refine and further codify the AUMF, but their efforts were opposed by the administration as well as by progressives who worry that a new law will simply ratify the ever-expanding battlefield. But Thornberry blasts the White House’s view that the AUMF can be repealed anytime soon. “At one point in the administration’s narrative, we had won the war on terrorism and we needed to move on. Events in the world have made that not true.”
Now, he worries, “we can’t do everything we want to do because the AUMF hasn’t been updated,” specifically citing the pursuit of militants who launched the 2012 attack on the American mission in Benghazi, Libya. “I want that solider out there to have the adequate legal support for what he is asked to do.”
Then there are others on the Hill who are seeking to contain the president’s power. Sens. Jeff Merkley, D-Ore., and Mike Lee, R-Utah, have cosponsored legislation that would require Congress to authorize further U.S. military action in Afghanistan after this year. “Automatic renewal is fine for Netflix and gym memberships, but it isn’t the right approach when it comes to war,” Merkley said when the bill was introduced in January. “It’s a decision that should not be made by a single person or one administration.”
Despite that effort, Democrats on the whole have shown little interest in the issue beyond offering occasional lip service that something, sometime needs to change. That’s likely because they’re in the same predicament Obama is in: Calling for repeal of the AUMF when threats still exist seems premature, but revising it is at odds with the narrative continually advanced by the administration that war is “winding down.” The lack of any sort of critical mass on the issue—either toward revision or repeal, suggests Congress is content to do nothing until pressed. That hasn’t happened.
Rep. Adam Schiff, a Southern California Democrat, has been a lonely voice for repeal—or, at the very least, some sort of sunset provision when the AUMF is ultimately reauthorized. “It’s plainly out of date,” he says. The increasingly shaky legal grounds for the war, he says, damages America’s global standing. “If the U.S. acts in a way contrary to our own legal authority, we invite all other countries to do so.”
There is one way Obama could effectively repeal the AUMF, experts say. He could stand up and unequivocally declare that the 9/11 conflict is over, that the al-Qaida that attacked America that day no longer functionally exists, and that the government will adopt a different counterterrorism posture going forward. “If the president wants to say the conflict is over, he doesn’t need an act of Congress to do it,” says Benjamin Wittes, a national security expert at the Brookings Institution. “He doesn’t need Congress to make the AUMF a dead letter.”
But there is a significant reason why he can’t do that. At least not yet.
The president needs the AUMF to provide a legal rationale for the indefinite detentions at Guantánamo. And until his administration comes up with some plan for closing that facility and determining what to do with the inmates deemed too dangerous to release—another thing it hasn’t done—the AUMF will have to remain in force.
Moreover, the political risks of declaring an end to hostilities are apparent, as Mike Rogers’s criticisms make clear. A major new terrorist attack against a U.S. target could make the president look foolish and naive. Yet if Obama truly wants to usher in a new paradigm before he leaves office, this may be the only way. Such a declaration would cause the legal authority for combating terrorism globally to revert to its pre-9/11 state, which more closely hewed to the law-enforcement-oriented approach favored by Attorney General Eric Holder, among others. At some point in the future, the switch—the move to a different footing, a departure from the 9/11 state of eternal war—will have to take place, because, as Thornberry says, “terrorism is not going away.”
But it’s likely Obama will not be the person who takes the country there. Six years into his presidency, the man who vowed to shutter Guantánamo, move away from the knee-jerk, Bush approach to counterterrorism, and restore the nation’s moral and legal standing in the world is still talking about doing all those things. The difference, as Wittes notes, is that now he comes across schizophrenically, as someone who is “a critic of his own policies.”
If Obama doesn’t dramatically change course, the president who laments fighting the Forever War will be the man who institutionalizes it. The machine will keep running without him.