How to (not) end wars

The war in Iraq is “over.” The combat mission in Afghanistan has been brought to a “responsible conclusion.” Why, then, are American soldiers still in these theaters in harm’s way and taking casualties?

{mosads}Under U.S. domestic law, concluding wars is not a clear-cut process. While war-making power is more explicit (the legislature authorizes force and the executive prosecutes the day-to-day war efforts), the Constitution is relatively silent on how or what branch of government holds primary responsibility to end conflicts abroad. “[T]he Constitution did not grant either branch complete power over war and peace, and the unilateral arrogation of such a power by either branch for political expediency necessarily diminishes the constitutional role of the other branch as a partner in government,” wrote David Simon, former special counsel to the General Counsel for the Department of Defense, in a 2014 paper for the Pepperdine Law Review, referencing the legislative and executive branches.

Simon continued:

In the absence of a clear constitutional provision for declaring peace, the wars waged by the founding generation against States were all ended by peace treaties. … Since 1945, however, as the United States has engaged in more frequent military operations of limited duration and amounting to hostilities below the threshold of war, presidents have ended wars unilaterally — often without any formal legal termination agreement.

One of the primary domestic authorities for counterterrorism operations is the 2001 Authorization for the Use of Military Force (AUMF) that authorized the war in Afghanistan. While thought to be narrower in scope at its drafting from the original version proposed by the White House, the 2001 AUMF has been expanded by the current administration to condone a raft of counterterrorism operations against militants abroad. The law does not name any specific group; it only permits the president to use necessary and appropriate force against “those nations, organizations [al-Qaeda], or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored [Taliban-controlled Afghanistan] such organizations or persons.” The AUMF is also currently cited by the administration as legal cover for operations against the Islamic State of Iraq and Syria (ISIS) — a highly specious justification, according to many legal scholars.

Given the AUMF’s now broad interpretation and scope of operations globally, it is easy to see how concluding a war in today’s era might be difficult. Under a reasonable interpretation, the conclusion of the U.S. combat mission in Afghanistan should have rendered the 2001 AUMF impotent just as the conclusion of the Iraq War in 2011 should have rendered moot the 2002 AUMF that authorized that war. (The administration also cites the 2002 AUMF as justification for operations against ISIS in Iraq. Some legal scholars contend the law’s provision asserting that “The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to … defend the national security of the United States against the continuing threat posed by Iraq,” can be applied to the fight now against ISIS despite the law’s original target, the Saddam Hussein regime.)

Simon posited a scenario similar to the one playing out today, noting that “if the President proclaimed an end to the ‘armed conflict’ against Al Qaeda and associated forces, but Congress did not repeal the 2001 Authorization to Use Military Force (AUMF) against these organizations, some might contend that the cessation of hostilities in this armed conflict — or at least the presidential or legislative recognition thereof — would require the relatively immediate release of the Guantánamo detainees. Could Congress, in such a scenario, prevent the release of detainees after the war had effectively been terminated? In such situations, the locus of the constitutional authority to terminate the war is not crystal clear.” While the president has not concluded the “armed conflict” against al Qaeda globally, he has concluded the combat mission in Afghanistan.

Additionally, Congress is preventing the closure of the Guantánamo prison camp, much to the dislike of the president, although the administration has also put up a legal fight maintaining its authority for continued detention given that “active hostilities” persist.

In both the Afghanistan theater, where the U.S. combat mission has ended, and the Iraq-Syria theater, where there is no overt congressional authorization for operations, U.S. troops are engaging in what appears to be combat-esque activity. The U.S. under the 2014 bilateral security agreement with Afghanistan is prohibited from “combat operations,” but the agreement provides a fair amount of latitude in the way of counterterrorism operations and support for Afghan troops.

Moreover, administration officials have admitted that U.S. troops are engaged in “combat” activities in these theaters but under the guise of a “train, advise, and assist” role best described to reporters recently by Brig. Gen. Wilson Shoffner, deputy chief of staff for communications for the Resolute Support Mission in Afghanistan: “I would compare the train, advise and assist role to perhaps a coach and a football team. And so the analogy would be that the coach is there for every practice, he’s there for every game, but he’s not on the field.” As for the operations in Iraq, in addition to the aforementioned purpose, White House spokespeople have described them as also serving as “humanitarian rescues” and “counterterrorism missions.”

Wars are generally political decisions, but as the old military adage goes, “the enemy gets a vote.” With al Qaeda, the Taliban and now an ISIS presence — formidable enough for the president to relax targeting rules — making considerable trouble for Afghanistan, and by extension, U.S. Resolute Support personnel, some are calling for an increase in military activity. The introduction of up to 50 special forces in Syria, up to 200 special operators in Iraq, talks of intervening in Libya, and Defense Secretary Ashton Carter’s signaling the potential for more troop deployments, feed a mission creep narrative for wars previously fought without overt authorization. Given the calls to act and the lethargy of Congress, the president has no doubt been stuck between a rock and a hard place. But, for these reasons, several prominent legal scholars — Jack Goldsmith of Harvard Law School, Ryan Goodman of New York University Law School and Steve Vladeck of American University’s Washington College of Law — have suggested that any new authorization of force against ISIS include a sunset provision which would “force the next Congress and president to decide after several years of experience whether and how the authorizations should be updated, or whether, if conditions warrant, they should be allowed to expire.”

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