ISIS: The difference between war and counter-terrorism | 14/09/14
by John Brian Shannon
When is a War a War?
Due the the language of the United States constitution, the term ‘war’ as it pertains to the U.S. launching a war, is a legal one where the President has the ability to declare war on another country and his only obligation going forward is that he must formally notify Congress within 30 days of declaring war. Officially it is Congress that declares war, just for the record. The President is the one who makes the decision to go to war and who initiates the U.S. military action.
Oh, and Congress must approve – or it’s instantly over
Congress then has the power to order the troops home and becomes responsible for all that happens in that afterwards.
Commonly, a President has many meetings with different members of Congress leading up to a declaration of war and it’s no surprise to that august body when they receive the official notification that the United States is already at war.
The legal definition of war, is simply; one country, militarily fighting another country or countries
It could also be an expanded declaration of war against more than one country.
During the Cold War for example, had it suddenly turned into a ‘Hot War’ the United States would have been at war with all the members of the Warsaw Pact nations (and possibly other nations too) not just Russia.
Had we gone to war against the Soviet Union during the Cold War, our #1 Soviet enemy would of course have been Russia, but what it little-known is that Ukraine would have been our #2 Soviet enemy. Funny how things work out. Now Ukraine is our ally and wants to join the EU. Ain’t peace great?
Anyway, the President is the only one who can declare war. Congress must approve it within 30 days
The language is very clear. It must be a country that the United States is declaring war against, the President must inform Congress within 30 days — and then a majority of Congressmen/women must approve the war.
Nowhere in the constitution does it say that the U.S. President can declare war on an organization such as ISIS, Al Qaida, or a corporation with evil intent (think James Bond’s Zorin Industries in ‘A View to a Kill’) the President has only the authority to declare war on a country or a group of countries.
Until the constitution is changed
But nobody is talking about that.
Some people have said that President Obama ‘must declare war’ against ISIS and Al Qaida. That cannot be done under the U.S. constitution.
Counter-terrorism operations vs. War
In this, U.S. Secretary of State John Kerry is quite correct when he calls the action against ISIS a ‘counter-terrorism’ action. It’s not a war. ISIS is not a country. As a former US Navy Lieutenant, John Kerry could probably still recite from memory the part of the constitution pursuant to US military involvement as directed by the U.S. Commander in Chief. When he says that this is not a war, you can trust him, it’s not a war. That covers the United States military aspect.
Which leaves the President the option of using the CIA to carry out the wishes of the President. Unlike the U.S. Defense Department, the CIA works directly for the President of the United States. However, there are some legal requirements here too. The President must write out a ‘security certificate’ which is a numbered document (commonly called a Presidential finding) authorizing a certain action or outcome, or potential actions/outcomes.
Although the order may be given to CIA over the phone for instance, a quick follow-up with the written finding must soon appear and it has been informally termed the CYA document (Cover Your A$$ document) in past years. But it also works to cover the President too in the case of field operatives who potentially at least, could get carried away (‘running away with the op’) and cause the President some amount of embarrassment.
Depending on the scope of the operation, the CIA senior staff may then requisition equipment, pilots, fighter jets, ships, etc. from the U.S. military as required and in order to carry out the President’s instructions.
All of this can happen in seconds with modern communications. A U.S. military pilot could be flying a sortie or returning to base from a training exercise one minute, and then be redirected instantly and under the authority of the President (via CIA forward air controllers) anywhere in the world.
Even though the pilot, in both cases is working for the Commander in Chief, in one case he is flying for the U.S. military and is bound by one set of rules and protocols, and seconds later is flying for the CIA with a different set of rules and protocols. (This means that the rules of engagement may be different)
In an undeclared war situation, if you’re dropping bombs on people, you better hope that somebody, somewhere, in CIA, has a signed Presidential finding covering your, ahem, sortie, or (under Geneva Conventions rules that military members of all nations must adhere to) you could find yourself in very deep trouble. That’s International Criminal Court (ICC) kind of trouble.
In a declared war situation, there are no legal problems for a U.S. military pilot. The President has declared war, and the Congress will or already has, approved it. Even if Congress later denies the application, the pilot is still covered as it is in the President’s mandate to declare war, even if that declaration is later rescinded.
To go on the offensive against ISIS which is clearly an organization and not a country, at this point (although it does have a future goal of becoming one, hence the recent name-change to ‘Islamic State’) cannot legally be done using the U.S. military. This has been and will continue to be, a CIA counter-terror operation (or more properly, a series of counter-terror operations) under the direction of the President of the United States.
And just to keep things in their proper perspective; “There is no credible information that [ISIS] is planning to attack the United States and there is no indication at this point of a cell of foreign fighters operating in the United States – full stop.” — Matthew Olson, outgoing head of the National Counterterrorism Center
People who call talk shows asking the President to ‘just declare war on ISIS’ haven’t read the constitution. ISIS is not a country, it’s an organization, and as such, the President cannot declare war on it.
But he can mount as many counter-terrorism operations against it as he likes — until it begins to look like a war.
Then, conceivably, the Congress could call the President to testify under oath, how it is that he is not conducting a war.
Of such stuff were the Iran-Contra hearings made. (And other quasi-military actions/Congressional hearings in decades long since past)
Almost everyone agrees that the West needs to deal with ISIS the organization, now. But in these cases a President has a lot on the line and it’s completely understandable that he has exercised caution.
It would be so much easier to let things roll forward until ISIS really is it’s own country (the ‘Islamic state’ as an actual nation-state) and then deal with them in the conventional war sense if they step out of line and commit acts of terror. But a lot could happen in the meantime. Leaving the situation to drift is too risky.
Other nations don’t have the U.S. constitution to follow and can invade Iraq to hunt and kill ISIS fighters all day long with no thought of impeachment, nor of having to answer to Congress ‘for waging a war that you say is not a war but looks an awful lot like a war.’
President Obama has proceeded very prudently along this timeline, neither; 1) committing the U.S. military under false pretenses, nor; 2) under the aegis of CIA, ordering too many attacks or highly intensive activities (which would make it look like a war) against the ISIS organization.
The right course and the legal course is the one that President Obama is on. Signing a weekly Presidential finding to hit certain and known blocks of terrorists, and sending military or paramilitary advisors (under the control of CIA) to Iraq to advise the government of Iraq and the Kurdish provincial leaders on how to best fight ISIS and related groups, sends the right message to ISIS and our allies, and significantly, is the most legal course of action available at this time.
As more allies join this movement to disrupt and contain ISIS, particularly Middle Eastern members of the now-forming coalition, more advisors can be sent to the region and few, but effective, U.S. counter-terror operations can be mounted against the ISIS organization.
Many U.S Presidents have said this in different ways; “The United States is a country of laws.”
President Obama is setting a fine example, and so far has resisted the urgent calls to ‘declare war’ on ISIS — something the U.S. constitution does not give him nor the Congress the power to do anyway — at least until the day ISIS becomes a legally recognized country.
Mounting few, but effective, counter-terror operations against the ISIS entity is fine. Coordinating with allies in a coalition against terror is fine. Assisting coalition members in the counter-terrorism role by supplying any reasonable number of (CIA) paramilitary advisors is fine.
Which is exactly what President Obama has been doing all along.