Following the inheritance of what devolved into two unpopular wars, President Obama sought to employ a "light footprint" when it came to using U.S. military power and counterterrorism methods abroad. However, Obama has exercised this "light footprint" in several regions around the world — far beyond the range of the initial War on Terror — with controversial tactics.
As many are familiar, Congress passes laws and the executive branch carries them out with some flexibility for tailored interpretation. An example of such interpretation is the Obama administration's legal reading of the key piece of statutory counterterrorism (and overt) authority — the 2001 Authorization for the Use of Military Force (AUMF) against al Qaeda and the Taliban — to include "associated forces" defined as those organized, armed and entering the fight alongside al Qaeda as well as a co-belligerent with al Qaeda in "hostilities against the United States or its coalition partners." The president can also rely on his constitutional Article II powers to defend the nation and its interests in the face of an "imminent" attack, with "imminent" also up for interpretation.
Following certain events such as the deaths of multiple apparent civilians and hostages, questionable practices such as signature strikes, and the broadening of U.S. covert and overt action abroad, many have called for reforms while some have gone farther by requesting institutional organizations or studies to rein-in the executive's war-making power. Amos Guiora, law professor at University of Utah's S.J. Quinney College of Law and Jeffrey Brand, law professor at University of San Francisco School of Law, proposed a "drone court," which would essentially approve of targets for drone strikes sought by the executive branch. Since 9/11, "the United States has struggled, as it never has in its history, with finding the appropriate balance between the protection of individual rights and the demands of national security," the professors contend.
Micah Zenko of the Council on Foreign Relations offered another bold suggestion: A National Commission on the War on Terrorism similar to the 9/11 Commission and made up of "10 former officials, diplomats, and experts — with no personal or financial interest in the outcome — empowered to speak with anyone and review any documents" to "do what elected and appointed leaders cannot: review, evaluate, and offer new policy recommendations."
"What began with limited airstrikes in Afghanistan on Oct. 7, 2001 to topple the Taliban has expanded to seven other countries — Yemen, Iraq, Pakistan, the Philippines, Somalia, Libya, and Syria — with sustained military or counter terrorism operations against terrorist groups and militant armies, most with no connection to 9/11 or any apparent intention or capability to directly attack the United States," wrote Zenko. The seeming expansion of military action to "outside areas of active hostilities," such as Yemen, creates a dangerous precedent.
Congress is not exempt from this discussion either. Aside from its constitutional ability to declare war, it possesses certain distinct powers to check executive authority if it so chooses to use them, such as the power of the purse. David Simon, former special counsel to the general counsel of the Department of Defense, wrote: "Unlike in other wars since 1945, with respect to the war in Afghanistan, Congress has not significantly relied on the power of the purse to control the direction of the war." For the most part, relevant congressional committees have tended to bestow its blessings on these controversial drone strikes, expanded use of special operations forces and robust surveillance practices. Although it is plausible that, as law professor Rosa Brooks contends, those on the inside know something those on the outside don't. It is also possible that for all its snickering, Congress is as perplexed by how best to proceed against an adaptive enemy as is the administration.
However, Congress has dropped the ball on passing an authorization for the recent offensive against the Islamic State in Iraq and Syria (ISIS), now in its 10th month. Passing an authorization is an opportunity for Congress to directly assert its role in policymaking and checking executive authority. Members of Congress could not seem to get on the same page when the president sent them his draft AUMF. Several members believed it to be too open-ended, while others thought it to be too restrictive. Crafting their own authorization using the president's draft as a guide for what the administration wants will allow members of Congress to shape the debate in their own way.
Putting aside the merits of the aforementioned proposals, they come from individuals frustrated with the way the U.S. government has pursued foreign intervention over the last 14 years. Clearly, the status quo is not desirable.
Pomerleau is a freelance journalist based in Washington covering politics and policy. Follow him @MpoM24.