The Legal Basis and Expansion of the War on Terror

The 17th anniversary of the September 11th attacks has passed, the 2001 events which prompted the Bush administration to launch airstrikes and deploy combat troops in Afghanistan, Iraq, and eventually Somalia. Obama followed where Bush left off, continuing air strikes and/or ground troops in four additional countries, bringing the total to seven. Two years into the Trump presidency, he has thus far followed in Obama’s footsteps, even with escalations in some campaigns, but also some hints of winding down others.

Timeline (ongoing italicized):

  • US military and NATO begin attacks in Afghanistan – October 7, 2001 to present
  • CIA conducts a drone strike in Yemen, however the extended air campaign in Yemen will not start until 2010 – November 5, 2002
  • US “advise and assist” troops are sent to the Philippines along with CIA paramilitary officers – January 15, 2002 to February 24, 2015
  • US military and coalition begin attacks in Iraq – March 20, 2003 to December 18, 2011
  • CIA begins drone campaign in Pakistan – June 18, 2004 to present
  • US military aircraft bomb suspected al Qaeda and affiliated operatives in Somalia starting in 2007 and continue sporadically through 2010. Al-Shabaab begins to emerge in 2011 and is a regular target of drone strikes to this day – January 7, 2007 to present
  • US military conduct drone and/or manned-aircraft strikes in Yemen, as well as some ground operations – May 2010 to present
  • US military begins combat against ISIS in Iraq – August 10, 2014 to present
  • US military and a coalition of Gulf states plus Jordan begin attacks in Syria against ISIS and affiliates – September 21, 2014 to present
  • US military conducts airstrikes against ISIS and affiliates in Libya – November 13, 2015 to present

Following the legal trail backwards: AUMF, War Powers Resolution, and the Constitution

On September 11, 2001, 19 al Qaeda hijackers launched a coordinated terrorist attack on United States soil.

A week later on September 18, 2001, Congress passed an open-ended Authorization for Use of Military Force (AUMF). It reads in part, “That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” Officially this is Public Law 107-40.

Of note is that this AUMF specifically singles out those who, “planned, authorized, committed, or aided,” the September 11 attacks. Al-Qaeda would soon emerge as the prime suspect.

Over a decade later the Obama Administration would set a legal precedent – which has withstood challenges up to the present – that interpreted this 2001 AUMF to also include those affiliated with al Qaeda. This precedent allowed for further expansion of the War on Terror that Trump has continued.

The constitutional legal justification for the War on Terror is arguably justified by Congressional passage of an AUMF.

Article I, Section 8 of the U.S. Constitution specifies that Congress has the sole authority to declare war. Over two centuries later the nuclear age created a new reality where it was expedient for the commander-in-chief to be able to respond within minutes to a first strike; with the invention of nuclear weapons there might not be a Congress left to declare war.

So to balance a first-strike scenario with the letter of the law in the Constitution – which by the 1970s had been eroded by undeclared wars in Korea and Vietnam – in 1973 Congress passed the War Powers Resolution, also known as the War Powers Act, officially known as Public Law 93-148. Some legal scholars have questioned the constitutionality of this but it thus far remains law.

The War Powers Resolution states, “The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.”

The second point – “specific statutory authorization” – is what the AUMF passed on September 18, 2001 addresses. This is the legal justification for the War on Terror.

The War Powers Resolution also states that when the president orders the deployment of combat troops – or the significant increase of additional combat troops – the president must inform Congress within 48 hours. And furthermore, 60 days after that, the combat mission must be ended unless any of the following conditions are met: 1) Congress declares war or specifically authorizes military action (for example, passes an AUMF), 2) Congress extends the 60-day period, or 3) Congress is unable to meet because of an ongoing attack on the United States.

Finally, the War Powers Resolution says the president can only extend the deployment of combat troops without Congressional approval one time for a maximum of 30 additional days, provided that the president certifies to Congress that, “… unavoidable military necessity respecting the safety of the United States Armed Forces requires the continued use of such forces in the course of bringing about a prompt removal of such forces.

It’s important to note that the rules about an AUMF or a declaration of war by Congress only apply to US military combat troops; the US Armed Forces. That includes the Joint Special Operations Command (JSOC). However, they do not apply to agencies like the CIA and its paramilitary Special Operations Group, or CIA drone strikes.

How the War on Terror grew from one country to six

What started with Afghanistan has grown to include military air campaigns and combat troops in six countries. This does not include non-combat troops deployed on training, advising, assisting, or support missions. Nor does it include non-military operations involving use of deadly force. One article published in Le Monde diplomatique concludes that the US is involved in 76 countries (graphic) as part of the War on Terror in the broadest sense, including its sum total of training, assisting, combat troop deployment, and any air strikes.

However this article only addresses the US military involvement in combat operations that are covered under the AUMF passed in 2001.

George W. Bush Administration, 2001–2009

Afghanistan – As the hosts of al Qaeda and rulers of Afghanistan, the Taliban were the first to come face-to-face with the War on Terror. U.S. bombs started falling on October 7, 2001, marking the beginning of Operation Enduring Freedom.

This also marked the first time a NATO member ever invoked Article V: the United States declared the September 11 attacks as qualifying as an attack on all NATO members, with which NATO agreed. The United Nations also played a role when it unanimously adopted Resolution 1386 on December 20, 2001 which established a U.N. internal security force within Afghanistan to be known as the International Security Assistance Force (ISAF). ISAF was led by NATO and had its own objectives that mostly overlapped with the U.S.-led Operation Enduring Freedom, the latter of which was also comprised of a coalition that included 12 non-NATO members.

Both the U.S. Operation Enduring Freedom in Afghanistan and the U.N.-mandated NATO-led ISAF operation officially came to an end as the year 2014 closed out. They were replaced by the current ongoing Operation Freedom’s Sentinel and Operation Resolute Support, respectively. The current American mission continues to be legally justified with the 2001 AUMF.

Iraq – While the legal justification for the general War on Terror stems from the AUMF passed in 2001, the legal justification for the initial 2003 invasion of Iraq is mostly separate.

The legal basis of the 2003 invasion of Iraq results from Congress’ passage of the 2002 AUMF against Iraq, officially Public Law 107-243, passed on October 16, 2002. It was necessary for this to be passed because the government of Iraq was not affiliated with the September 11 terrorist attacks and therefore not subject to the 2001 AUMF.

The 2002 Iraq AUMF cited 23 points as reasons why military intervention was justified. These ranged from Iraq’s 1990 invasion of Kuwait to violations of UN resolutions to weapons of mass destruction and more. One of the 23 points does state that members of al-Qaeda were living in Iraq at the time, and makes several references to the September 11 attacks.

This 2002 AUMF was also open ended. The George W. Bush administration ordered military strikes to begin on March, 20 2003 in Operation Iraqi Freedom, which would continue beyond the two-term Bush presidency.

Somalia – On January 7, 2007 the Bush Administration officially expanded the War on Terror to Somalia when a US military plane attacked a suspected al Qaeda convoy. Throughout the remainder of his presidency there would be at least five more US military strikes against primarily al Qaeda, Islamic Courts Union, and al-Shabaab targets in Somalia.

Barack Obama Administration, 2009–2017

Obama campaigned on ending the Afghanistan and Iraq wars during the 2008 election. But contrary to ending those two wars, in addition to ongoing military strikes in Somalia, he also expanded US military combat campaigns to an additional three countries: Yemen, Syria, and Libya.

Iraq – Obama took office on January 20, 2009, just a few weeks after a ceremony handing control of the Green Zone capital region of Baghdad officially over to the Iraqi government. A month later he announced the withdrawal of all combat troops from the country by then end of August 2010. By the end of 2011 he would eventually make good on his pledge to end combat operations in Iraq by name, a point which also marked the end of the combat operations authorized by the 2002 AUMF for Iraq.

However by August of 2014 with ISIS’s rise to power in northern Iraq, the Obama administration invoked the 2001 AUMF to justify open-ended combat operations in both Iraq and Syria against ISIS, known as Operation Inherent Resolve, which continues to this day.

Afghanistan – Obama ran on the notion that the war in Iraq was a mistake and took the focus away from the war in Afghanistan. During his first year in office combat troop levels in Afghanistan rose.

The killing of Osama bin Laden, reported to be May 2, 2011, signaled a turning point for Obama’s troop commitments. Over a month later on June 22 Obama announced the withdrawal of 33,000 troops by the end of summer 2012.

Obama continued negotiations with the Afghan President Hamid Karzai about the status of US forces, which ultimately culminated in the October 26, 2014 end of official US combat operations in Afghanistan. NATO officially ended its combat mission at the end of that year, which was subsequently replaced by the train, advise, and assist Resolute Support Mission.

Even though the Obama Administration declared an end of the combat mission in Afghanistan, 9,800 US troops remained in the country to participate in the new NATO mission, as well as to conduct counter-terrorism raids, force protection, and logistical support, a mission that would extend beyond Obama’s second term in office to the present.

Somalia – September 14, 2009 saw a particularly daring raid involving US troops launched from a helicopter in Somalia against a vehicle convoy linked to al Qaeda and al-Shabaab. This also marked the Obama Administration’s continuation of military operations in Somalia which would increasingly target suspected al-Shabaab members. Mostly with drone strikes, there were at least 42 incidents throughout Obama’s two terms, with more than half of those occurring in 2015 and 2016.

Yemen – In May of 2010 a US-launched cruise missile struck a suspected al Qaeda meeting in Yemen. By November 7, 2010 the Washington Post reported the Joint Special Operations Command had deployed drones to Yemen to start gathering surveillance intelligence and finding targets.

That news of 2010 portended a US air campaign carried out by manned aircraft as well as drones in Yemen that has lasted to the present at a rate of at least several missions per year.

On March 25, 2015 the US partnered with Saudi Arabia and a coalition of eight other countries in the region to conduct operations against the Houthis in Yemen. The US role includes intelligence, refueling, and supplying weapons to the coalition.

Syria – Obama announced his intention to conduct military airstrikes in Syria on September 10, 2014. 12 days later the US launched airstrikes against ISIS targets in Syria in a campaign that would continue to the present. That campaign has included a coalition of Gulf states and Jordan, representing an escalation of what had previously been involvement through training, supply, and support for select groups involved in the Syrian Civil War.

Libya – November 13, 2015 marked the opening volley of US airstrikes against ISIS targets in Libya. 2016 saw extensive airstrikes carried out starting in August and continuing until the end of Obama’s second term.

Earlier US, NATO (especially the UK, France, and Italy), and other partner states’ actions that led to the death of Libya’s leader Qaddafi were legally justified by UN Resolution 1973 and therefore technically separate from the War on Terror.

But regardless of the legal justification under international law, the American laws about the president committing the US Armed Forces to combat still apply. In today’s terms that means an AUMF; less-likely-but-ideally an official declaration of war from Congress.

It’s interesting to note the Obama Administration received neither.

It did this by making a highly technical legal argument, saying that the US military was engaging targets from the air only, and since no American had been shot this therefore did not constitute “hostilities,” the word used in the text of the War Powers Resolution. As one Senator pointed out at the time, “By that reasoning we could drop a nuclear bomb on Tripoli and we would not be involved in hostilities…”

Nevertheless the Obama Administration got away with its 2011 Libya intervention for over seven months.

Donald Trump Administration, 2017–Present

Trump inherited ongoing US military combat operations in six countries: Afghanistan, Iraq, Somalia, Yemen, Syria, and Libya. One of his first actions as president was to order a US military boots-on-the-ground operation in Yemen. At the time of this writing Trump has announced the withdrawal of combat troops from Syria and the halving of US troop levels in Afghanistan from 14,000 to about 7,000.

Iraq – Continuing in the tradition of Obama, Trump has kept US combat troops engaged against ISIS in Iraq, predominantly with airstrikes. With the gradual degrading of ISIS, by February of 2018 a reduction of US troop levels in Iraq was announced, and by July of 2018 the remaining US troops in Iraq were said to be training and assisting Iraqi armed forces. However as late as October 2018 there are reports of US combat-troop-led missions against ISIS in Iraq, along with US-led coalition strikes on ISIS targets in Iraq.

Afghanistan – Since the Obama Administration, US troops in Afghanistan have officially been supporting the ongoing NATO mission, as well as engaging in counter-terrorism raids, force protection, and logistical support. US military operations have continued to the present, with a current troop level of approximately 14,000.

The Trump administration has made a renewed focus to engage Taliban targets, with the Air Force dropping at least 3,000 bombs in the first half of 2018. His announcement of a planned withdrawal of 7,000 troops less than a week ago has not yet been implemented.

Somalia – Trump continued Obama’s quickened pace of US military drone strikes and other operations in Somalia directed primarily at suspected al-Shabaab targets. With at least 53 operations in Somalia since he took office in January 2017, the Trump Administration’s number of airstrikes are roughly double the Obama Administration’s pace in its final two years with no indication of slowing down.

Yemen – Just nine days after being sworn into office, on January 29, 2017 Trump authorized a rare boots-on-the-ground special operations mission in Yemen.

Resulting in the death of one US soldier and injury of three others, since then the Trump Administration has used air strikes to hit suspected al Qaeda targets at a rate of two operations in 2017 (one of which was a week-long operation involving at least 45 airstrikes), and one suspected drone strike in July 2018.

Aside from these incidents the US military has been extensively involved in the fight against the Houthis in Yemen by providing logistics, refueling, targeting, and weapons to Saudi Arabia and a coalition of eight other Arab States who are engaged on the ground and in the air against the Houthis.

Libya – Since Trump’s assumption of the presidency there have been periodic US military airstrikes in Libya primarily against ISIS targets. March 30, 2018 marked the first Trump Administration airstrike against an al Qaeda in the Islamic Maghreb (AQIM) target.

Syria – The Trump administration has continued the airstrike campaign against ISIS and affiliated targets started during the Obama Administration. In March 2017 US military ground troops were reportedly providing artillery cover for forces advancing on Raqqa and in a separate instance at the Tabqa Dam. Other periodic ground troop operations have since taken place.

April 7, 2017 notably marked the beginning of US military attacks directly against the armed forces of the government of Syria led by President Bashar Assad. Since then there have been at least nine additional US military attacks directly against Syrian government forces or their allies, none of whom were affiliated with al Qaeda or ISIS and therefore did not fall under the purview of the 2001 AUMF; these attacks occurred without apparent US legal justification.

Less than a week ago on December 19, 2018 Trump declared his intention to pull out all 2,000 US troops from Syria.

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