The Guns of September

[Editors’ Note: The following post is the first installment of a new feature, “Monday Reflections,” in which a different Just Security editor will take a longer view each Monday through a look back at the big stories from the previous week and/or a look ahead to key developments on the horizon.]

In her Pulitzer Prize-winning book, The Guns of August, Barbara Tuchman famously unpacked how the German and French militaries effectively planned their way into the First World War–with the inflexibility of (and unshakable faith in) German’s Schlieffen Plan and France’s Plan XVII having a lot to do with why the foremost military minds of their generation both (1) were sure they would prevail in a short, decisive conflict; and (2) could not anticipate the bloody quagmire into which the Western Front quickly descended. Indeed, this very week marks the 100th anniversary of the First Battle of the Marne–a tactical French victory that, more significantly, ushered in the end of mobile offensive operations in the West (and any hope of a quick resolution to the conflict), and led to the onset of four years of trench warfare.

The Guns of August has been on my mind a lot in the last few weeks–as the drums in Washington (and among the commentariat) seem to be beating ever louder for some kind of decisive military action against the Islamic State of Iraq and the Levant (ISIL). No, ISIL is not Germany, we’re not France (or Britain, for that matter), and this is not 1914. But it seems that everyone in Washington has their own proposal for the legal framework that should govern how we go to war against ISIL–be it through (1) a clever reinterpretation of existing statutory authorities such as the 2001 (9/11-based) AUMF or the 2002 Iraq AUMF; (2) a brand new AUMF that either is or is not limited to ISIL; or (3) continued reliance upon the President’s authorities under constitutional and international law to act in self-defense. And from the sound of it, we’re going to hear from the President later this week that, at least for the moment, he’s leaning toward (3). All of them–all of us–might be well-served by re-reading Tuchman.

What’s terribly exasperating about this conversation–and the reason why it reminds me of the terrible mistakes made a century ago–is the extent to which everyone is assuming the answers: not only that ISIL does indeed pose a long-term threat to the United States sufficient to justify some kind of framework for forward-looking uses of military force, but that we know enough about that threat to provide, in sufficient legislative detail, the specific contours of what that framework should look like.

Thus, the last few weeks have brought with them a flood of new proposals from various Members of Congress, ranging from Congressman Wolf’s plan to authorize force against everything (what one colleague has called GWOG–“Global War on the Globe”) to proposals to amend the 9/11 AUMF to include ISIL as an “associated force” of al Qaeda. Some of these proposals are broad; others are narrow. But few are well-informed. And even some of the smarter commentary, from folks like Jack Goldsmith and our own Harold Koh, have focused on specific legal questions (e.g., how the Obama Administration may or may not be sidestepping the War Powers Resolution) that, charitably, is putting a rather large cart before an indeterminate pack of horses. Instead, these proposals all assume, like the inflexible plans of 1914, that we have a clear picture of what’s actually true on the ground today (and what’s going to be true on the ground tomorrow)–or, at the very least, that nuance and specificity are simply distractions.

In contrast, and to its credit (at least in my view), the Obama Administration has taken a more circumspect approach at least thus far–even if it’s been criticized for not appearing to have a “strategy” for responding to ISIL. But as things come to a head in Washington, it’s worth stressing the kinds of questions to which we (the public) still don’t actually know the answers:

  1. Is the Administration’s goal to do whatever it takes to destroy or degrade ISIL (which would presumably require a virtually open-ended authorization, since that would almost certainly take years of extensive hostilities across various theaters of hostilities)?  To keep ISIL out of Iraq?  To defend particular operations in particular theaters?  To accomplish anything in particular in Syria?  To somehow ensure that ISIL does not have capabilities to strike the United States?
  2. Should there be geographic specifications and/or limits to any authorization—and, in particular, should Congress consider authorizing the use of force in Syria?  If so, why and for what purpose?  And what would be the theory under which such force would be consistent with the U.N. Charter?
  3. What kinds of authorities does the Executive Branch believe it will need in light of the answers to (1) and (2)?  Does the Administration intend to conduct operations beyond intermittent, targeted airstrikes?  Does it intend to engage in the sort of status-based targeting that is permissible in an armed conflict?  Does it seek authority for the long-term military detention of captured targets?  For introduction of ground troops?

This is not an exhaustive list, of course. And my point is not to suggest that we should accept whatever answers the Obama Administration provides to these questions. But these questions should be at the heart of any conversation about whether and under what circumstances we should go to war against ISIL–and how Congress can and should carefully circumscribe any statutory authorization for such operations that it is inclined to provide. And, perhaps most importantly, these questions should be ones that President Obama addresses when he speaks to the nation on this topic Wednesday night.

After all, there are lots of ways not to go to war against ISIL. The hard questions are whether we need to–and, if so, why. Only then can we answer the “how.” That was the point no one understood in 1914–when the “how” drove everything else. Here’s hoping we don’t let history repeat… 

About the Author(s)

Steve Vladeck

Co-Editor-in-Chief of Just Security and Professor of Law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).