How dare we. State Department spokeswoman Marie Harf tries to spin how dropping bombs on two countries to destroy an entity that has yet to attack the US doesn’t count as a preemptive war:
Allahpundit watches the clip:
Preventing a dangerous enemy from hitting the U.S. by hitting him first sounds pretty preemptive-y to me. If I understand her correctly, the reason this isn’t preemptive war a la Bush is because it isn’t war, period. A war is something you engage in against a nation-state; we don’t recognize ISIS’s caliphate, ergo, they’re just a bunch of terrorists and preemptive war against terrorists is simply counterterrorism. I think that’s why you’re seeing such a moronic sustained effort today among White House mouthpieces to avoid using terms like “war” and “victory,” with Harf refusing even to accept “war on terrorism” as a label at the beginning of the video [above]. (Obama himself never once described the new “effort” against ISIS as a “war” [Wednesday] night, by the way.) The parallels here to 2003 — preempting a threat to the U.S. by overthrowing a brutal regime in the heart of Iraq — are too obvious and too politically uncomfortable to adopt Bush-era terms like “war” and “preemption” too. And of course, the more you talk about it as a new “war,” the more the public’s left wondering why an Article I declaration of war by Congress is unnecessary.
Asawin Suebsaeng catches John Kerry making the same claim:
“If somebody wants to think about it as being a war with [ISIS], they can do so, but the fact is that it’s a major counterterrorism operation that will have many different moving parts,” Kerry said Thursday on CNN. “I don’t think people need to get into war fever on this,” he told CBS News’ Margaret Brennan. … It is true that this latest round of airstrikes and other actions against ISIS is not a war in the classic sense. It isn’t as flashy or big-budgeted as past wars, and significantly fewer boots are on the ground. It is not a war in the sense that war has not been declared, but by that standard, the one that Kerry fought in (that disastrous one that served as the basis of three Oliver Stone movies) wasn’t a war, either.
Froomkin interprets the attitude Obama projected in his Wednesday night address:
This was not going to be a huge deal, he indicated. He called it an “effort,” not a war, and stressed that “this effort will be different from the wars in Iraq and Afghanistan. It will not involve American combat troops fighting on foreign soil.” There was no talk of shock and awe; what Obama had in mind was a ”counterterrorism campaign” that “will be waged through a steady, relentless effort.” And Obama’s lack of any specificity regarding the scale of the effort, the timing, goals for partner participation, or any kind of metrics for success was either cover for him not really having a viable plan — or a brilliant rhetorical strategy to keep open the option of ratcheting everything back once the hysteria passes. Or both.
Mary Ellen O’Connell underlines that in international law, the kind of preemptive defensive operation the Obama administration envisions is still illegal:
Late last month, Yale law professor Harold Koh, the former legal adviser in Obama’s State Department, asserted that the United States had the right to attack ISIL under international law to “to avert humanitarian disaster and to protect U.S. nationals and vital interests.” But international law is clear: The right to use force in self-defense arises following a significant armed attack against a country when more such attacks are likely. The use of force in self-defense must target the territory of the state responsible for those attacks. The United States has faced only one such situation under current law: It occurred on Sept. 11, 2001, and led to the war against Afghanistan, which gave safe haven to Osama bin Laden and the al Qaeda forces that orchestrated and carried out the 9/11 attacks. There simply is no right under international law to resort to major military force to avert humanitarian disasters or to protect nationals or “interests.”
Indeed, the administration is trying to claim authority for this operation under the 2001 AUMF that opened the way for the war in Afghanistan. That’s transparently illegal too, but Massimo Calabresi doubts that will make a difference:
If Obama is breaking the law, don’t expect much to come of it in the short term. The consequences of Obama’s legal interpretation, beyond his own discomfort, are not likely very great. The Bush administration showed the bar for legally constraining presidential counterterrorist actions is high, and even when it is surmounted there are little or no penalties. Politically, the president has nothing to fear: no matter how angry they are about the new effort against ISIS, the left wing of Obama’s party isn’t going to impeach him, and the right won’t either, at least not for going after Islamic extremists. In the long term, perhaps Obama’s legal legerdemain will boost those who want to come up with new, clearer legal frameworks for international counterterrorism operations. But for now Obama, like Bush before him, seems determined to act without them.
And that scares the crap out of Jonathan Hafetz:
Going to war against ISIL through the rubric of the AUMF has significant implications. Among them is the deterioration of the levers of democratic accountability for waging armed conflict in an age of global terrorism. It suggests not only the relative ease with which the United States will go to war, but also the way in which new military actions are subsumed under a more generalized war against extremist groups. War is becoming increasingly open-ended, while also more able to avoid democratic checks, as each successive military operation gets subsumed within an existing–and ever growing–conflict. War doesn’t end; it just expands, all without the friction that the separation of powers is designed to provide.