By Christine Seisun

The war in Iraq is over except for the packing.  There are talks of accelerating the drawdown of US troops in Afghanistan currently scheduled for 2014. Osama bin Laden and Anwar al-Awlaki have been killed in high-profile military operations in Pakistan and Yemen and Defense Secretary Leon Panetta has gone on record stating that defeat of the remaining 10-20 top Al Qaeda leaders was “within reach.” It would seem as if the US War on Terror is slowly winding down. Think again.

The United States military budget is now higher than it was during the Cold War and is set to keep rising at an impressive rate. The US is now actively bombing outside of the Iraq and Afghanistan theaters and the Unmanned Aerial Vehicle (a.k.a. drone) program is slated for an additional $5 billion in 2012. In fact, the first year under the Obama administration saw more drone attacks in Pakistan than during the entire Bush presidency and attacks have grown continuously since then. Instead of finding a way to strategically transition out of its military engagements under the ambiguously defined “War on Terror” and concentrate on the complicated process of nation-building, the United States seems to be simply shifting to a newer robotic form of warfare unconstrained by geographic boundaries.

Defining the Enemy

Exactly who is the United States fighting in the War on Terror? After all, terrorism is a tactic and not a physical enemy. In the weeks following the 9/11 attacks, the rhetoric used by White House officials by no means clarified who the enemy was and where the War on Terror was meant to take place; ten years later a clear definition from American officials has yet to emerge. Political scientist Francis Fukuyama has commented that “Terrorism is only a means to an end; in this respect a ‘War on Terror’ makes no more sense than a war on submarines.”

Both the Bush and Obama administrations have argued that transnational armed groups such as Al Qaeda are unique to armed conflict; they do not neatly fit into the pre-existing definitions of armed groups and lawful combatants found under the Geneva Conventions. As a consequence, many legal counsels within the US government including David Addington, John Yoo and Jay Bybee have claimed that customary international law does not apply to this “new form of warfare,” essentially giving the United States government carte blanche to create its own legal paradigm while conducting military operations. This dangerously flexible legal interpretation of a global battlespace can be seen on page 21 of the 2010 National Security Strategy: “Wherever al-Qa’ida or its terrorist affiliates attempt to establish a safe haven – as they have in Yemen, Somalia, the Maghreb, and the Sahel – we will meet them with growing pressure.” Moreover, many legal scholars have noted the hypocrisy of the United States in invoking the authority of the Geneva Conventions while conducting military operations, yet refusing to abide by its obligations, asking for the sweet without the bitter.

In addition to haphazard US attempts to define the War on Terror, the operational strategy remains vaguely understood at best.   Australian counterterrorism analyst David Kilcullen has aptly pointed out that the United States has effectively engaged in a policy of “aggregation” by lumping together all terrorism, all rogue or failed states and all strategic competitors. This strategy means that the United States considers itself at war against all terrorists, regardless of geographic scope, ideological background or nationality. If there is neither a set definition of the enemy, nor an established battlefield, it is virtually impossible for the United States to either declare victory in the War on Terror or for the “enemy” to legally surrender. Such a policy would be counterintuitive to the general philosophy underpinning the laws of war, which are meant to strike a balance between the concepts of military necessity and humanity, thereby mitigating unnecessary suffering.

War Everywhere

While the United States might be withdrawing soldiers on the ground from the conflict zones of Iraq and Afghanistan, drone operations are only ramping up in countries such as Pakistan, Somalia and Yemen. For the most part, Defense Department reports describe emerging Al Qaeda cells in these areas as decentralized groups united by “little more than their anti-Western agendas” springing up independently and operating with very little connection to the traditional base of Al Qaeda. As a result of the US policy of aggregation, the Somali militant group Al Shabab’s February 2010 declaration of allegiance (and little else) to Al Qaeda was enough for the United States to begin a drone strike campaign against them in the East African country. Last month, a drone strike killed 46 people in one day with many more injured in a city south of Mogadishu. This lumping together of mostly unrelated transnational armed groups under the general Al Qaeda banner sets a dangerous precedent of war everywhere; instead of a pre-established battlefield, the US War on Terror has created a battlespace spanning the entire globe. This lack of geographical limit has led former chief prosecutor for the United States at Guantanamo Bay Morris Davis to declare that the Obama administration is attempting to operate in a “law-free zone”. In reference to the controversial extraordinary rendition program Davis stated that: “Prisoners of war are supposed to have been captured on the battlefield. Abducting people off the streets of Indonesia and other places far from Afghanistan is pushing the envelope on what is a battlefield. The whole world is in essence the battlefield.”

With the new US emphasis on drone warfare, often times piloted by CIA agents thousands of miles away from the theatre of war, the ever-growing program “sanitizes” the dirty act of killing. However, terrorism is a political phenomenon and cannot be bombed into ultimate defeat. Indeed, a 2008 Rand Corporation study titled “How Terrorists End: Implications for Countering al Qa’ida” affirms that the most successful tools in the fight against terrorism are either local police work or the demilitarization of terrorist groups by involving them in the political process. Instead of working towards more inclusive, diplomatic solutions, the United States is shying away from doing so.

Drone Wars

The United States currently maintains over 1,000 military bases worldwide, with 60 bases integral to drone operations. The continued silence from the US government in publicly acknowledging CIA involvement in the drone strike program is counterproductive and detrimental to the rule of law. It is widely known that the US strategically leaks information to the press regarding the program but it has thus far refused to officially discuss the policy behind the drone program in public. Due to near-unanimous official or tacit international disapproval, it would be more prudent for the United States to try to build international consensus by making public the legal and political rationale for the drone program instead of hiding it behind the cloak of military secrecy. From a domestic standpoint, the decision-making process within the various Departments of the US government who are involved with the program still ultimately rests in the hands of those within the security camp as opposed to those working towards diplomatic solutions. Under new orders instituted by President Obama, if a disagreement regarding the political sensitivity of a drone strike arises between the State Department and the CIA, the CIA has final say. It is also important to note that while the CIA is technically a civilian agency separate from the Department of Defense, its active involvement in military operations makes the CIA headquarters in Langley, Virginia a legitimate military target.

Drone operations are now part of the bedrock of overall American military strategy with new bases under construction in Ethiopia and the Seychelles, a country 1,000 miles from the African mainland. The United States has expanded its drone campaign to no fewer than five countries (not including US involvement in Libya) and the use of strikes shows no sign of abating. In Pakistan, the United States notably stopped asking for Pakistani authorization to carry out drone strikes after 2008 and instead transitioned to a policy of “concurrent notification” with the Pakistani government. The US government only made the policy shift after targets in Pakistan repeatedly and “mysteriously” disappeared shortly before impending US strikes.  The move away from advance notification occurred when the US discovered that the Pakistani government would sometimes delay planned strikes in order to “warn Al Qaeda and the Afghan Taliban, whose fighters would then disperse.”

The US drone program could also have the unintended side effect of making Unmanned Aerial Vehicles a ubiquitous weapon of war. With websites such as DIYDrones.com, there is nothing stopping countries or groups hostile to the United States from quickly developing their own drone program.

Re-Authorizing the Use of Military Force

The 2001 and 2002 Authorization for the Use of Military Force (AUMF) Congressional acts respectively sanctioning force against those who “planned, authorized, committed or aided” the 9/11 attacks and authorizing the US military invasion in Iraq are still in full effect. These two acts are what provide the US government with the legal authority to conduct military operations in the War on Terror. As the AUMFs are now nearly a decade old and the end is nigh for the wars in Iraq and Afghanistan there is also a significant movement within both houses of Congress to create an expanded definition of where and when the US might use military power and exercise detention authority across the world.

The push to update the AUMFs is seen in the 2012 National Defense Authorization Act (NDAA) currently under review in both houses of Congress. The Act seeks to revise the definition of the enemy under the War on Terror and prohibit any Defense Department attempts to use funds in closing down the controversial detention center at Guantanamo Bay. The NDAA is largely considered a means to further institutionalize US military authority under the War on Terror and also expand the scope of the original AUMFs. It would require the military to imprison those arrested within the United States on terrorism charges, an area previously delegated to law enforcement officials. Such a provision would ignore the long-standing history of the American domestic legal system in successfully handling terrorism cases, such as that of Richard Reid, a.k.a. the Shoe Bomber. This proposal would directly infringe upon current domestic counterterrorism tools now available to the FBI, forcing them to hand over suspects even if they were making advancements in intelligence.

More than a decade after 9/11, it stands to reason that the United States should begin to think of ways to scale back its massive military operations and detention policies put in place under the War on Terror. Instead, the new NDAA and the expanding geography and budget associated with drone strikes not only entrenches but enlarges these policies. We may be slowly but surely moving out of Iraq and Afghanistan but the War on Terror is far from over.

About the Author

Christine Seisun recently completed her masters in International Law specializing in the laws of armed conflict at the School of Oriental and African Studies (SOAS) University in London, England. While working for the American Red Cross in San Diego, CA she managed the Exploring Humanitarian Law program and is currently the International Affairs Editor for Westlake Malibu Magazine.