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When is America actually at war?

With or without Congress, President Obama can authorize military force

February 14, 2016 2:00AM ET

During his final State of the Union address, President Barack Obama challenged members of Congress to “send a message to our troops and the world” by finally authorizing the use of military force against the Islamic State in Iraq and the Levant (ISIL), then said that they weren’t really necessary when it came to doing so. “The American people should know that with or without congressional action, ISIL will learn the same lessons as the terrorists before them,” he said.

His statement’s brazenness was almost camouflaged by its simplicity. The president was saying that he didn’t need Congress to declare war in order for him to conduct war. Or, to be more accurate, he didn’t need Congress to continue conducting war.

The legal question of Congress’ ability to put a check on the executive’s use of military force raises a serious question, When is America actually at war? The fact that Obama has been able to deploy troops and conduct airstrikes without a formal declaration speaks to the practical meaninglessness of an authorization for use of military force (or AUMF).

AUMFs have a precedent going back to 1798 and don’t always result in the use of force, but the AUMF that Congress gave the president on Sept. 14, 2001, was basically an open-ended abdication of congressional responsibility to rein in executive wartime privilege. Since then, the AUMF has been used as dubious legal cover for conducting attacks all around the world, including in countries with which we’re not at war and against American citizens.

Without even the pretense of legal cover for the conduct of war, are we now entering an age when the demarcation between wartime and peacetime is meaningless? What do we lose when that distinction is eroded?

Time is central to how we define war. Temporally, wartime stands apart from the normality of peace. The Italian philosopher Giorgio Agamben went so far as to define war in direct opposition to normality, calling it a “suspension of the legal order itself,” dramatizing a major social effect of wartime: a parallel set of laws or no laws at all during martial struggle.

The idea of wartime as time riven from normality by virtue of its unconventional legal processes goes back at least to Rome. Cicero expressed it that way in his phrase “Inter arma enim silent leges” (In wartime, laws are silent). The assumption in this line of thinking is that when a society is threatened existentially, it’s incumbent on the state to do everything in its power to neutralize the threat, including sacrificing the normal legal processes of peacetime for wartime expediency. Jurist and philosopher Carl Schmitt defined the power of the sovereign, the supreme source of political will in any country, as emanating from its ability to define “the exception.” 

By calling America’s struggle against terrorism a war, George W. Bush was indicating that the U.S. was entering a time when the normal rules didn’t apply.

In the late 19th century, wars ballooned to sizes and costs completely unprecedented in human history as war and industrialism became entwined in a double helix. Mass production and modern transportation became the backbone of any large-scale military endeavor. Since the Civil War, every major conflict has preceded a tightening of the belt, as Maj. Jason Warren, a faculty member at the U.S. Army War College, put it. And that means switching from a wartime economy back to a peacetime one. Factories turned from making things essential to the war back to meeting peacetime demands; materials such as rubber, aluminum and silk were no longer rationed by the armed forces. And so in this demarcation of normality, wartime meant that the economy was also on a wartime footing, that average citizens were expected to make material sacrifices in their day-to-day lives and that every last industrial resource was martialed for the war effort. This economic shift from a war back to a peacetime economy was another example of normality versus the aberration of wartime.

In a 1940 speech Franklin Delano Roosevelt warned that if the Axis powers won World War II, “we would have to convert ourselves purely into a militaristic power on the basis of war economy.” Despite the Allied victory, the atomic bomb ensured that his prophecy came true. The anxiety of the Cold War, with two nuclear-armed superpowers poised at each other’s throats, was a major step toward achieving a permanent state of war without war: the growth of a permanent war economy and the nation on a permanent war footing without the declaration of war against the Soviet Union.

The state of affairs that emerged gave rise to the now permanent military-industrial complex that Dwight D. Eisenhower warned about in his farewell address as president on Jan. 17, 1961. Wars against North Korea and Vietnam, falling under the umbrella of the Cold War, were representative of the constant struggle against communism. War against an ideology instead of a state only seemed to confirm the confused definition of normality in the second half of the 20th century.

The global “war on terrorism” was another step in the same direction. Before the 9/11 attacks, terrorism and war were two different and very distinct things. But drawing on a Cold War precedent, George W. Bush and his administration decided to split the difference. By calling America’s struggle against terrorism a war, he was indicating that the U.S. was entering a time when the normal rules didn’t apply.

The 9/11 AUMF, which took the place of a formal declaration of war, is at the center of this ambiguity. It reads:

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 Sept. 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.

As Gregory Johnsen wrote for Buzzfeed, its power hinges almost entirely on this single sentence.

That sentence doesn’t have to be misread or overinterpreted to mean that the White House has the authority to kill whomever it wants, wherever it wants, without a formal declaration of war. Judging by this sentence alone, Obama doesn’t seem wrong in insisting that this AUMF gives him the legal cover to bomb Syria. It clearly does. It also authorizes pre-emptive strikes.

Rather than see this AUMF as a singular obstacle in the path to a restoration of conventional wartime and peacetime, it should be read as an artifact that confirms a long-running trend. The U.S. has been on something resembling a wartime footing at least since the beginning of the Cold War. Even during drawdowns, our military still eats up a huge portion of our budget. Our special forces and clandestine services have been consistently subverting international law since the end of World War II. And the global “war on terrorism” has only kicked the trend into overdrive, so that on a now permanent wartime footing, the traditional legal and economic markers of normality are disappearing.

What would normality look like? Would we be spending $11 million a day on airstrikes? Would the government be spying on its citizens? Would American troops still be dying in Afghanistan? Until the future president, whoever that turns out to be, gets something more than acquiescence in response to the blurring of discrete wartime and peacetime, this will be the new normal for the U.S. — a never-ending series of international escapades, paired with extralegal intelligence gambits, financed at exorbitant costs by American taxpayers. George Orwell put it best: “a peace that is no peace.”

Scott Beauchamp is a veteran and writer living in Portland, Maine. His work has appeared in The Atlantic, Bookforum and The Baffler, among other places. 

The views expressed in this article are the author's own and do not necessarily reflect Al Jazeera America's editorial policy.

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