Wrapping the world in war

President Obama promised to end our ‘forever war,’ but he could leave office having wrapped the entire world in war. 

The Obama administration has adopted the view that the United States should use deadly force against its enemies wherever they are. That’s the terrifying and all-encompassing characteristic of America’s war. If enemies of the United States go to Pakistan, or Morocco, or the Philippines, the war can follow them. 

{mosads}That nations go to war to protect and defend themselves and their allies is nothing new. What’s new is that technological advances, persistent fear, expansive legal reasoning (along with much more secrecy) make it easier to wage war. 

So why does this matter? 

A state of war makes killing more permissible. International law allows a country at war to kill its enemies when they pose no immediate threat and tolerates the killing of civilians under a principle known as “proportionality.” War also lets countries detain people outside the criminal justice system.  

In the past, the idea that the legal exceptionalism that accompanies a state of war could quickly spread from country to country was not much of a concern. Enemies were not global and the world was less tolerant of war. Nations were less willing to invoke war to combat terrorism.  

But then came the Sept. 11 terrorist attacks. The technological advances in drones and surveillance that followed made it easier to wage war. At the same time, the president and Congress remain petrified of another terrorist attack and the political fallout if an attack is not prevented. So despite drones killing civilians abroad and our loss of civil liberties at home, the new rationale is that if we have technology that might protect us, then we must use it.  

Today, we have the power to fight everybody everywhere. The Bush and Obama administrations said the war was not only against al-Qaeda and the Taliban, but also “associated forces.” Secretary of State John Kerry made clear  just how far the Obama administration’s understandings of “associated forces” can go when he lobbied Congress last year for new legislation to attack ISIS.   

When former Sen. Mark Udall (D-Colo.) asked Kerry how the administration would treat groups in Algeria, Libya, Egypt, Yemen, and Saudi Arabia who pledged alliance to ISIS, Kerry answered, “They should be associated forces. They fit under that category.”  

Secret presidential orders and legal memos, insulated from accountability, also allowed for the war to take place without the constraints of any real public debate and little judicial oversight. This is occurring despite the lessons learned from the CIA’s torture program and the NSA surveillance programs, which demonstrate how government secrecy is a breeding ground for government excess.  

To counter its critics, the administration says it put in place important checks and balances (most notably the Presidential Policy Guidance) that go above and beyond what international law requires to ensure it is not acting in excess.   

But the PPG is riddled with questions and loopholes. It remains unclear where and how the PPG is applied, what happens if the government’s own rules are not followed, and who are listed as “associated forces.” On top of that, as more credible reports of civilian deaths from drone strikes emerge, the administration’s definition of “civilian” could be too narrow.  

Firing a missile from an unmanned drone without risking the lives of U.S. personnel is appealing, but it can lead to overuse and marginalize non-military responses to terrorism. It speaks volumes that Cameron Munter, the former U.S. Ambassador to Pakistan charged with implementing U.S. foreign policy in Pakistan, resigned because of what he says was the CIA’s misuse of drone strikes. Reports that the United States killed individuals involved in peace negotiations are equally troubling. 

The consequences of these actions—a seemingly endless global war—were obvious even to the Obama administration. In 2012, with the outcome of the presidential election uncertain, the New York Times reported that the Obama administration codified U.S. drone policy to constrain future presidents from overusing drones. Obama worried that a President Romney would be even less judicious in the use of drones. That’s a fair concern, but the Obama administration should worry about itself and do more to constrain its own actions. 

Horowitz is a legal officer for the Open Society Justice Initiative.