Rand Paul Is Right

There is no state between war and peace. So said Cicero, and now proclaims international law: Either there is an armed conflict or there isn’t.

Yet when Cicero spoke those famous words, before the Roman Senate in 43 B.C., the empire had split into armed factions and his fellow senators had declared a state of "tumult" — precisely the ambiguous state between war and peace Cicero claimed could not exist.

This vignette tells us two things. First, that the boundary between war and peace as factual phenomenon is often blurred. Second, that it is precisely when the facts on the ground are blurred that the legal line between war and peace matters most.

On Jan. 14, Sen. Rand Paul (R-Ky.) proposed a bill to repeal the 2002 Authorization of the Use of Military Force (AUMF) in Iraq: "With the practical side of the mission concluded, I feel it is appropriate to bring this conflict to an official, legal end," he said in a statement.  

Paul’s proposal has generally been seen as purely symbolic, including by the Obama administration, which agrees with Paul in principle, but does not see it as a priority for that reason.

That the legal end of the war should be understood as symbolic and practically irrelevant is disturbing: Legal lines limit executive discretion to use force. And given the rapid deterioration of Iraq’s security situation in recent months, such discretion matters.

Throughout 2013, Iraqi Prime Minister Nouri al-Maliki’s exclusion of Sunnis from national politics has effectively reversed many of the gains made during the U.S. surge in 2007, cumulating in the capture last month of Fallujah and Ramadi in Anbar province by al Qaeda affiliates.

The deterioration has drawn the United States back in, even if only indirectly. Apart from ongoing high-level military and intelligence assistance, December 2013 saw the United States rapidly accelerate sales of ScanEagle drones and Hellfire missiles to the Iraqi government.

On Jan. 5, Secretary of State John Kerry stated that: "We are not, obviously, contemplating returning. We’re not contemplating putting boots on the ground. This is their fight, but we’re going to help them in their fight."

But Kerry immediately went on to say that this was not, actually, just their fight: "And yes, we have an interest. We have an interest in helping the legitimate and elected government be able to push back against the terrorists. This is a fight that is bigger than just Iraq…The rise of these terrorists in the region and particularly in Syria and through the fighting in Syria is part of what is unleashing this instability in the rest of the region."

So whose fight is it in Iraq? Or put another way: How should we characterize the conflict in Iraq? Is it a continuation of the 2003 war, but now in a phase where the Iraqi government is in the lead? Is it simply Iraqi domestic law enforcement? Or is it part of what the Obama administration refuses to call the war on terror?

There is no clear answer, as the ambiguity of Kerry’s statement makes plain. The facts on the ground in Iraq do not establish a clear line between war and peace.

That should come as no surprise: The concept of war in an analytical as opposed to a descriptive sense was ill-suited to characterize the Iraq conflict after the fall of Saddam Hussein. The factual distinction between war and peace typically correlates with the distinction between the military and political phases of war: Two sides fight militarily, and then a political settlement is reached on the basis of the military outcome.

But in Iraq, there were never two clear sides. Beginning in 2005, the U.S. mission was primarily aimed at enforcing the domestic jurisdiction of the Iraqi government. As a result, the realistic end state was not a clear military victory over a coherent enemy, but a relatively stable political balance between the various factions holding power.

In that kind of fight, every action — violent or non-violent — needs to be considered in terms of its local political impact, success being measured by how political affiliations change as a result of individual actions. Wins and losses, in other words, are generally measured in bazaar chatter, not body counts.

When Gen. Raymond Odierno, the top U.S. commander in Iraq, was asked in 2010 if the war was effectively over, he replied: "[W]ar is a very different concept…I call [Iraq] more of an operation, not a war." That was a very astute comment.

Iraq for the United States was, of course, war in a descriptive sense, since that level of violence was more than just law enforcement. But to think that as a war it had an end-point clearly distinguishable from peace is misleading. The U.S. surge was successful because it realigned Iraqi politics, so by definition it was vulnerable to reversal. Politics does not end.

So why does this matter? When the factual boundary between war and peace is blurred on the ground, legal lines are critical because they delimit executive discretion to use force — all the more so when there is a realistic possibility of being drawn back into the war.

While ground re-intervention is not on the table, the possibility of U.S. drone strikes in Anbar against al Qaeda affiliates is not so remote, and was a possibility that Kerry implicitly left open: "We are going to do everything that is possible to help them, and I will not go into the details except to say that we’re in contact with tribal leaders from Anbar province whom we know who are showing great courage in standing up against this as they reject terrorist groups from their cities."

The legal basis for any U.S. re-intervention in Iraq — for example, carrying out drone strikes — could either be the 2001 AUMF that is directed against the 9/11 terrorists and their supporters or the 2002 Iraq AUMF. Given that the legal basis of past U.S. drone strikes has remained largely opaque, uncertainty as to which AUMF would be used raises both democratic and strategic concerns.

Strategically, were the 2002 AUMF repealed, the Obama administration would have to link any action in Iraq to the 2001 AUMF. Then at least there could be a debate about the extent to which the 9/11 attacks can still be used to justify an expansion in the campaign against terrorism today. My point here is not to come down on either side — I can see good reasons why the United States either would or would not want to use drones directly in Iraq — but about strategic clarity: The 2001 AUMF authorizes the United States’ seemingly never-ending fight against terrorism.

The enemy is so loosely defined in the 2001 AUMF that it can never be defeated, being as much an ideological franchise as a physical entity. As a result, the war never ends and ultimately merges with routine political activity. If that’s the fight the Obama administration considers itself to be in, it should make that clear and be held to account, given all the consequences that flow from an effective state of permanent war. If not, it should not fall back on the 2001 AUMF. Either way, the current approach has only led to strategic confusion: Denying that the so called "war on terror" exists is obviously not compatible with using the 2001 AUMF to fight terrorists worldwide.

Because the 2001 AUMF has created a gray zone between war and peace, Rand Paul’s bill is useful less because of its political impact — which has been insignificant — but because of the strategic question it should prompt the U.S. administration to answer: Where are we with the war on terror?

The democratic implications follow logically. Under the 1973 War Powers Act, Congress limits executive discretion by defining the war within which the executive can use force. When that war is not clear, the constitutional checks aren’t clear either. That is plainly unsatisfactory.

Finally, we should recall that this is not the first time legally ending a war in Iraq has mattered. According to President George W. Bush and British Prime Minister Tony Blair’s lawyers at least, the second Iraq war was simply a continuation of the first. One of the U.S. and British legal justifications for the 2003 invasion was that Iraq was in material breach of its disarmament duties under the terms of the 1991 Gulf War ceasefire. That revived a previous U.N. authorization to use force against Iraq from 1990. Thus, while armed conflict as a factual circumstance faded between 1991 and 2003, it continued throughout in a legal, technical sense.

That view is contentious to say the least. It is that very contention, however, that should make us take Paul seriously.