Officials in Washington are inadvertently providing some insight into the strange logic of their nebulous war against the Islamic State, also known as ISIS and ISIL, in contradictory and puerile statements about whether the military action should be called a war, or perhaps something else.
Backtracking on an earlier statement that the action against ISIS is simply a “counterterrorism operation,” Secretary of State John Kerry clarified in an interview on Sunday that it is, in fact, a “war.”
“In terms of al-Qaeda, which we have used the word ‘war’ with, yeah, we are at war with al-Qaeda and its affiliates,” Kerry said on CBS’s “Face the Nation.”
“And in the same context if you want to use it, yes, we are at war with ISIL in that sense. But I think it’s a waste of time to focus on that,” Kerry said, adding that there’s “kind of tortured debate going on about terminology.”
On one hand, Kerry may be right that these semantic arguments are something of a distraction, since the debate should be more properly focused on whether the policies of airstrikes are effective, legal, moral and justified, not whether they are called a “war” or a “counterterrorism operation.”
On the other hand, the very fact that we are having this public dispute about which of our military actions qualify as “wars,” which ones are “counterterrorism operations,” and which ones are just run-of-the-mill bombing campaigns should sound the alarm that our political culture of perpetual war is out of control, having reached a bizarre and perilous point about which Americans are increasingly confused and the Constitution is ill-equipped to handle.
Indicative of this strange new normal was a poll released Sept. 4 revealing that few Americans actually know which countries the U.S. is currently bombing. Only about one third of Americans, according to the YouGov survey, knew that the U.S. has not yet conducted strikes in Syria, while 30 percent thought that it has, and the remainder admitted they were unsure.
At the same time, just a quarter of Americans knew that the U.S. military has carried out strikes in Somalia and Pakistan during the past six months, and only 16 percent were aware of strikes in Yemen.
It’s hard to imagine another country on earth in which the citizens could be so confused about which countries were currently being bombed by their government, but then again, no other country on earth is bombing so many other countries so regularly.
When it comes to the strikes targeting ISIS, when administration officials are not arguing about what to call the operation, they seem to be crafting flimsy legal foundations for the strikes by dusting off the 2001 and 2002 Authorizations for the Use of Military Force.
These rationales have not been terribly convincing, with the New York Times pointing out that the 2001 law applied specifically to the perpetrators of the 9/11 attacks and al-Qaeda more broadly, but since ISIS is not affiliated with al-Qaeda, the law clearly doesn’t apply to the current situation.
“The fact that al-Qaeda has disavowed ISIS, deeming it too radical, does not seem to prevent the administration from ignoring the logic of the law,” the Times noted.
Meanwhile, the U.S. government has not even bothered to provide a justification for the strikes under international law.
It has instead asserted without elaboration that borders present no constraints to U.S. military action. “We are lifting the restrictions on our air campaigns,” a senior administration official told reporters during a recent background briefing. “We are dealing with an organization that operates freely across a border, and we will not be constrained by that border.”
Under international law, however, borders most certainly do pose constraints. The sanctity of borders is enshrined in the UN Charter in fact, which states, “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”
One reason for the administration’s silence regarding the international legal basis for the possible use of force against ISIS in Syria is that none exists, since the Bashar al-Assad regime has not consented to the use of force in its territory.
As John Bellinger writes at Lawfare, “This will leave the administration to cobble together a variety of international legal rationales.” Some of these might include the argument that ISIS is part of al-Qaeda and therefore part of the U.S. armed conflict, or perhaps some sort of co-belligerency theory, or perhaps collective self-defense.
“Ultimately,” Bellinger speculates, “the administration may choose not to articulate an international legal basis at all, and instead to cite a variety of factual ‘factors’ that ‘justify’ the use of force, as the Clinton administration did for the Kosovo war. But it would be much preferable for the administration to provide legal reasons.”