[infinite warfare]Biden’s War Powers Without Limits

08-04 18:54

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  Pentagon spokesman John Kirby announced during a media briefing at the Pentagon on February 25, 2021, that the U.S. conducted airstrikes against facilities in eastern Syria that the Pentagon said were used by Iran-backed militia groups.

  This week, the Biden administration launched three retaliatory airstrikes against Iranian-backed militias in Iraq and Syria. It is the second time President Biden has authorized bombing Iranian proxies; the first time was in Syria only weeks into his presidency. Taken together, the form of these strikes and the explanations offered in their defense offer some clues into the character of the Biden administration’s foreign policy. One thing is clear: As the administration tries to break with old policies, the past is strangling the present.

  In some ways, this strike is distinguishable from the recent past. Although strikes against terrorist groups—or even Iranian proxies in particular—are not new, the way the Biden administration claimed authority for the strikes stands in stark contrast to the justification offered by Trump for using force. The Biden team cited international and domestic law as legitimizing the strikes. On the morning after the Biden strikes, Pentagon spokesperson John Kirby invoked the right to self-defense under international law, referring to the strikes as an “appropriate” and “necessary” use of force. Kirby also invoked the president’s Article II powers. Both legal references represent a notable step away from Trump’s consistent disregard for international covenants, laws, and treaties, not to mention for constitutional limits on the presidency.

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  It is not, however, a moment to relax. After all, following the Bush administration’s blatant departure from law in matters of torture and interrogation, President Obama restored international law only to use it to justify the use of presidentially authorized drone killings, even for U.S. citizens and in increasing numbers of countries.

  There is much that is worrisomely familiar in these strikes. The use of force in Syria, without a specific authorization from Congress—in fact, despite Obama’s attempt to get such an authorization—and the use of force against Iran, without a declaration of war, follows a twofold pattern that has plagued the “war on terror” and its aftermath. First, the use of Article II authority to authorize attacks without going to Congress, and second, the acceptance of a vastly broad battlefield. The initial Authorization for Use of Military Force (AUMF), passed days after the September 11, 2001, attacks, handed the president broad authority to conduct attacks in the name of keeping the country safe from terrorism; it recognized no geographical or temporal limits, included no terms for the end of hostilities, and did not name an enemy. Policy has followed language as the war on terror has jumped from country to country and enemy to enemy over three, now four successive presidencies. Congress, meanwhile, has consistently refused to exert its oversight authority over the use of either the 2001 AUMF or the 2002 AUMF for the war in Iraq.

  Policy has followed language as the war on terror has jumped from country to country and enemy to enemy.

  This gift of broad war powers to the president was apparent in this week’s strikes as well, as many in Congress noted. On the morning after the strikes, Sen. Chris Murphy (D-CT) shook his head in dismay at this long-standing acceptance of expansive presidential war powers. Murphy said in a press release that the president is constrained by law—the War Powers Resolution—to consult Congress before taking military action, and when in case of national emergency he takes unilateral action, to brief Congress within 24 hours of such a strike.

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  “Both the Constitution and the War Powers Act require the president to come to Congress for a war declaration,” Murphy said. Many members of Congress, among them Sen. Tim Kaine (D-VA), have expressed concern as well that the president was overreaching in his interpretation of self-defense, something Kaine notes should follow an imminent attack as opposed to mere retaliation. “I think it has to be defense against attacks or imminent attacks.”

  But as we know from the Obama reset, the concept of imminence proved resistant to binding limitations on the president. In justifying his drone strikes, Obama redefined the concept of imminence to mean something that could someday harm the United States rather than a specific pending threat. And overall, Congress’s appetite for exercising its lawful powers of restraint has been minimal. Columbia Law professor Michel Paradis puts it well: “Congress’s attitude in this regard is akin to being given three wishes by a genie and making the first wish that of infinite wishes.” Despite the legislation, restraints have been virtually nonexistent.

  Once again, the consistent narrative of war powers during this century has been one without meaningful limits, should the president decide to use force. And there is an even deeper consistency with the past that warrants attention.

  Sen. Murphy’s remarks suggested a much-overlooked piece of the conflict that has spanned two decades: a blurring of the distinction between war and hostilities. “My concern is that the pace of activity directed at U.S. forces and the repeated retaliatory strikes against Iranian proxy forces are starting to look like what would qualify as a pattern of hostilities under the War Powers Act.” The critique embedded in Murphy’s statement concerned Biden’s failure to make a distinction between war and the absence of war, his blurring of the lines between what does and does not constitute war. While killing people in the context of geopolitical conflict is war, American leaders have, year after year, continued to elide the distinction between war and its opposite. Most notably, this occurred with the 2011 bombing of Libya, which the Obama administration determined did not rise to the level of hostilities.

  The consistent narrative of war powers during this century has been one without meaningful limits, should the president decide to use force.

  Biden, of course, did not create this gray zone. The refusal to distinguish war from hostilities overall has been a landmark piece of the war on terrorism architecture. It’s worth noting that the 2001 Authorization for Use of Military Force to counter those responsible for 9/11 does not use the word “war” itself.

  In fact, in the case of these recent strikes, a further version of this ever-disappearing clarity that has plagued the definition of war this century has emerged; namely, the idea of using attacks to send a message, as one official bluntly put it, and as numerous headlines declared. This is admittedly not new with Biden. But it has taken on extra energy even during his brief tenure.

  The message, to Iran, is one of deterrence, that the Biden administration is not afraid to use force if it keeps attacking U.S. interests. In the case of this week’s attacks, the targets were largely supply and munitions buildings, and the casualties have been reported so far as none by U.S. sources and seven by the Syrian Observatory for Human Rights. As a message, it is one more in a series of messages traded via warfare in the escalating tensions between the U.S. and Iran. Consider the assassination of Iranian commander Qassem Soleimani, for example. Afterward, Iran conducted a retaliatory attack on empty bunkers that resulted in no deaths and numerous unacceptable brain injuries, owing to an announcement of the planned attack that allowed for evacuation from the area. Iranian ambassador to the U.N. Majid Takht Ravanchi said the strike was intended to “send a message.”

  Arguably, the use of force to send a message, especially if it avoids casualties, can be a plus in international relations. But in the context of the blurred definition of war, it has only served to further widen the category of attacks that elude the definition—and therefore the laws—pertinent to war.

  Put simply, the damaging legacy of the war on terrorism is still with us when it comes to war. Expansive use of presidential powers still rests on the 2001 and the 2002 AUMFs, and the lack of distinction between war and hostilities persists as a loophole for the use of force around the globe. The Biden team can—as it has already to some extent done—put limits on its use of the authorities that exist. It can forge ahead with diplomacy in place of violence, avoiding casualties and with conditions tied to international and domestic law.

  But re-establishing norms of restraint are not enough. Congress needs to rise to the challenge as well. It needs to sunset the 2002 AUMF, which is up for repeal in the Senate, having passed the House last week. It needs to repeal or reform substantially the 2001 AUMF, insisting on specifics as to geography, time frame, and specificity when it comes to the enemy. It needs to invest itself in oversight over the War Powers Resolution, policing the use of war powers more closely, rather than just standing by as the president does what he wants.

  Admittedly, it’s a challenge to fix the past while building the future. It’s not just what the moment requires. It’s what the present moment offers.