Should there be a new War Powers Resolution?

The Vietnam conflict was more than a war; it was a generational movement with political implications that have traversed through the decades. The war led Congress to reassert its perceived powers and authority under the vagueness of the Constitution’s war-making abilities to pass — over President Nixon’s veto — the War Powers Resolution. The law was and is seen by the executive as a controversial and an unconstitutional check on its war-making powers. Much like the Vietnam era, the U.S. is now bogged down in a similar conflict, its longest ever: the collective War on Terror. This new conflict has seen two different prosecutions by two different presidents. However, as it currently stands, controversial tactics and interpretations of statutory war authorities passed in years prior have led some to seek reform and a stronger voice from Congress. Given these controversial tactics in recent history, is it necessary to amend the War Powers Resolution or to pass new laws in line with the Constitution for addressing and reforming the way in which the United States faces threats?

{mosads}The drone program, or more pejoratively described, the targeted killing program, is one of the most controversial of these tactics and is a key tool of the Obama counterterrorism arsenal. It operates both in areas of “active hostilities” and areas “outside active hostilities.” It is also largely governed by policy directives and it draws from legal aberrations. The Presidential Policy Directive (PPG), issued in May 2013 following an outcry of alleged collateral damage, states that force will be issued outside areas of hostilities “only against a target that poses a continuing, imminent threat to U.S. persons. It is simply not the case that all terrorists pose a continuing, imminent threat to U.S. persons; if a terrorist does not pose such a threat, the United States will not use lethal force.” As many have been quick to point out, the pure nature of “signature strikes” runs counter to this narrative. Additionally, “hostilities” are believed to be areas of an established “hot” conflict such as Afghanistan and Syria (and parts of Pakistan, but more on that below), though Ryan Goodman and Thomas Earnest have argued that the notion of “areas of hostilities” is a “term of art … developed by the administration at an unknown date, and not found in international law.”

The infamous “near certainty” standard outlined in the PPG that “non-combatants will not be injured or killed” before drone strikes are approved is also just a policy directive and not a concept found in international law. The laws of war (international human rights law and international humanitarian law) have established the necessary protocols for such actions.

Since the PPG is largely the standard by which the government wages its drone war, exceptions can and have been made. The Wall Street Journal recently reported that the administration made certain exceptions and eschewed their standards in Pakistan by targeting members of terrorist organizations even if they did not necessarily pose an imminent threat.

The administration has also taken to expanding the scope of groups that it can target under existing legal authorities. The “associate forces” doctrine established by the administration enables it to target “(1) an organized, armed group that has entered the fight alongside al Qaeda, and (2) a co-belligerent with al Qaeda in hostilities against the United States or its coalition partners.” Following a similar pattern, the notion of associated forces is not an established tenet of international law — it broadly parallels co-belligerency. The inclusion of these associated forces has allowed the administration to target terrorists in several regions. In fact, Stephen Preston, general counsel for the Defense Department (who will soon be stepping down), outlined in a recent speech all the groups the U.S. is currently targeting and where:

[A]l-Qa’ida, the Taliban and certain other terrorist or insurgent groups in Afghanistan; al-Qa’ida in the Arabian Peninsula (AQAP) in Yemen; and individuals who are part of al-Qa’ida in Somalia and Libya. In addition, over the past year, we have conducted military operations under the 2001 AUMF against the Nusrah Front and, specifically, those members of al-Qa’ida referred to as the Khorasan Group in Syria.

However, there has been a call for greater transparency in the groups or individuals the U.S. targets. Harvard law professor Jack Goldsmith rhetorically asked, regarding the full top-secret list of terrorist group targets: “If the organizations are ‘inflated’ enough to be targeted with military force, why cannot they be mentioned publicly?”

The administration has also expanded its legal authorities to cover the offensive against the Islamic State in Iraq and Syria (ISIS). “The recent split between ISIL and current al-Qa’ida leadership does not remove ISIL from coverage under the 2001 AUMF [Authorization for Use of Military Force] because ISIL continues to wage the conflict against the United States that it entered into when, in 2004, it joined [Osama] bin Laden’s al-Qa’ida organization in its conflict against the United States,” Preston explained, using the alternative acronym for ISIS. However, this is factually incorrect. Some have pointed out that following the death of ISIS’s original founder, Abu Musab al-Zarqawi, subsequent leaders have not pledged fealty to al Qaeda’s leaders and fealty pledges are conducted from leader to leader, not group to group. This means, as Aaron Y. Zelin notes, “in effect, the group [ISIS] and its subsequent incarnations have not technically been subordinate to al-Qaeda in eight years.”

Given the fact that the keystone of the Obama administration’s counterterrorism policy is based on policy directives, not necessarily law along with other major aspects related to the War on Terror that are established through expanded legal authorities, many have called for significant reforms and transparency. Congress grew tired of its perceived imbalance in war-making during the Vietnam conflict and passed the War Powers Resolution to check the executive branch.

Despite proposed legislation recently to amend and clarify the War Powers Resolution, is there a need for additional laws or similar blockbuster legislation to guide the next generation through the War on Terror? This will be left up to elected officials to determine if necessary.

Pomerleau is a freelance journalist based in Washington covering politics and policy. Follow him @MpoM24.