Analysis: Defining down war

By Michael Hirsh

July 1, 2011

Each day for the last three months, NATO has issued a classified order dividing the ongoing air war in Libya-uhh, let's call it "mission"-into offensive and defensive operations.

The latter category is America's job, and it is huge. It includes Suppression of Enemy Air Defenses, which consists mainly of U.S. jets "loitering" in Libyan air space to watch for surface-to-air missiles that might threaten the "offensive" part of the mission: the French, British, Canadian, Norwegian, and Danish planes attacking Muammar el-Qaddafi's forces.

The United States is also supplying most of NATO's intelligence-gathering, surveillance, and reconnaissance capability in Libya, along with air-to-air refueling for NATO strike forces. By NATO's own evidence, President Obama was somewhat disingenuous in claiming at his Wednesday news conference that U.S. forces were not "carrying the lion's share of this operation." U.S. planes, in fact, "represent the majority of aircraft within the theater, and they have done so from the beginning," NATO spokesman Tony White told National Journal on Thursday. "The U.S. role continues to be fundamental to the mission" and is "supremely important in every strike sortie."

Thus, by playing "defense" and putting no U.S. soldiers on the ground, Obama has effectively gone to war in Libya while denying that America is pursuing "hostilities" that might trigger the War Powers Resolution requiring congressional approval. Whatever you think about his legal argument, Obama's approach may be working. As he said on Wednesday: "We have not seen a single U.S. casualty."

Yet Qaddafi is, by several accounts, close to being toppled. Rebel forces are said to be within 50 kilometers of Tripoli. The French, on their own initiative, say they plan to arm them. And NATO is already anticipating victory, White said. "The moment we reach the tipping point-and we're getting very close to that-which is that the vast majority of [Qaddafi's] troops start not obeying his orders to attack or just lay down their arms, he's done."

Obama's legal and moral tightrope walk through Libya is a new variation on a very old theme. Presidents have been tiptoeing and sidestepping into war-sometimes without congressional approval-ever since Thomas Jefferson became the first president to contemplate invading the shores of Tripoli more than 200 years ago when he deployed the new U.S. Navy and Marines to the pirate-ridden Barbary coast. Invoking the Monroe doctrine, President Wilson intervened regularly in Latin America, especially Mexico, Cuba, and Panama, saying, "I am going to teach the South American republics to elect good men." Presidents Eisenhower, Kennedy, and Nixon authorized CIA coup attempts intended to achieve the effects of war without engaging in one.

What's striking, though, is how presidents over many decades have been able to refine the process of going to war without saying so. In response to resistance from Congress and the American public, U.S. leaders have had little choice but to get much better at this stuff. In the 1970s, following the Church Committee hearings, Congress brought the coup-happy CIA into line, requiring a presidential finding and congressional oversight for any agency action that might influence events abroad. The 1973 War Powers Resolution, meanwhile, was largely a response to Nixon's secret bombing of Cambodia.

In an effort to avoid unpopular wars, presidents have also gotten better at finding ways to cleverly use international bodies like NATO and the United Nations as diplomatic and legal cover, dating back to the U.N.-authorized "police action" in 1950 that came to be known as the Korean War.

In 1991 President George H.W. Bush so deftly used the U.N. to muster broad international action in the Gulf War that Washington was said to have made a profit on that war (a striking contrast to his son's largely unilateral action in Iraq 12 years later). In Kosovo in 1999, Bill Clinton launched a massive NATO air attack in a humanitarian campaign that he refused to call a war, mounted in support of a cause he refused to define (because he didn't support the Kosovars' claims to statehood).

The latest refinement comes from America's ever-advancing war technology and covert capabilities. The Predator drone has become Obama's weapon of choice in theaters from Pakistan to Yemen and was recently introduced into the Libyan conflict, permitting a policy that comes very close to conducting war without public accountability (though U.S. ambassadors in these countries are supposed to vet targets and Congress is supposed to know, strike requests are almost never denied). In Afghanistan, the concept of counterinsurgency, itself a cleaned-up, somewhat euphemized form of war, is fading fast, and there aren't any doctrines to take its place. More and more, instead, the administration has come to rely on the CIA and on private contractors not subject to normal oversight.

Under new Defense Secretary Leon Panetta, a budget whiz intent on paring traditional war platforms, and the nation's covert-action-savvy incoming CIA director, the soon-to-be-civilian Gen. David Petraeus, the process of turning war into something other than war is likely to grow even more intricate and subtle. Both men have already proved adept at fighting long-term actions in ways the public isn't told about, in places such as Yemen.

And there will be new covert types of war, typified by the recent creation of a U.S. Cyber Command. "We talk about nuclear, we talk about conventional warfare. We don't spend enough time talking about the threat of cyberwar," Panetta said at his Senate confirmation hearing. "There's a strong likelihood that the next Pearl Harbor that we confront could very well be a cyberattack that cripples our power systems, our grid, our security systems, our financial systems, our governmental systems."

Scott Silliman, a former Air Force JAG and a highly regarded legal scholar on war at Duke University, says the United States is entering into a new arena with few rules, and the War Powers Resolution is already miles behind, legally, constitutionally, and practically. At the time it was enacted, he said, the law was so hotly disputed that no firm definition of "hostilities" was drawn up.

"Every time you've had a challenge against the president under the War Powers Resolution the courts have said that's a political question. Everyone knows this is not going to go anywhere in litigation," Silliman said. "It was passed because Congress had no control over what President Nixon was doing in Vietnam. But that was with a view toward very traditional armed conflict. Now we're into asymmetric warfare, and 'standoff' warfare using drones in which you're not even in the theater of operation when you fire the missiles. How do you define that? It is similar to the questions about cyber war. Is that warfare? Can you respond with military force?"

The refinement of the process of going to war has also become more necessary because polls show that Americans believe they no longer can afford wars of choice, wars with fuzzy humanitarian aims that don't end in victory, or even expensive counterinsurgency campaigns that drag on and on, as in Afghanistan, Iraq, and Pakistan.

That means, in general, smaller military "footprints," meaning the presence of large numbers of troops and equipment. And the smaller the footprint, the less a president has to worry about consulting Congress or the American people. All of which means that the question of when and how we go to war-or even what war is any more-will grow that much more slippery.

By Michael Hirsh

July 1, 2011