In a speech before the United Nations General Assembly in September, President Joe Biden declared that, for the first time in twenty years, the United States was “not at war.” Yet in the month since Biden’s remarks, the United States has launched a drone strike against al-Qaeda, defended U.S. troops from drone attacks at a base in northeast Syria, and conducted special operations raids against ISIS. If this is what not being at war looks like, then it is difficult to conceive of a world where the United States is truly at peace.

The Biden administration shows no sign of ending America’s longest war, the so-called global “war on terror.” If anything, the withdrawal of U.S. troops from Afghanistan has prompted the administration to rely more heavily on “over-the-horizon” counterterrorism operations—a euphemistic rebranding of drone strikes and special operations in Afghanistan, Somalia, Syria, Yemen, and elsewhere.

But it would be a mistake to end one war at the expense of entrenching another more nebulous conflict. Faced with a multiplicity of threats, the United States can no longer afford to wage war without clear objectives, benchmarks for success, and a plan for how the military effort will restore order and pave the way for peace. As the Biden team completes its counterterrorism review, the administration must formulate such a plan and address the most fundamental question: how will the global war on terror actually end?

War by Another Name

Ending wars is never easy, particularly when they are fought in the shadows out of public view. Despite pledging to end the “forever wars,” the Biden administration continues to conduct drone strikes, special operations, and “train, advise, and assist” missions around the world. Many Americans, including some members of Congress, would be surprised to learn that the United States last year was engaged in counterterrorism operations in at least 85 countries, with combat troops or a combat role in 12 countries.

Even in Afghanistan, where the forever war has been said to have ended, the United States remains on a war footing. On October 6, the Acting Solicitor General told the U.S. Supreme Court that, notwithstanding troop withdrawals from Afghanistan, the U.S. government continues to be  “engaged in hostilities” with al-Qaeda and “associated forces” under its interpretation of the 2001 Authorization for Use of Military Force (2001 AUMF). The U.S. government maintains that it remains in a global armed conflict with these groups, implying that the laws of war – which are more permissive than law enforcement standards with respect to when states may engage in detention and resort to lethal force – apply in counterterrorism operations.

Setting aside controversial legal arguments concerning the existence of a global armed conflict, this position gives rise to a disconnect between policy and law. From a policy perspective, the Biden administration has portrayed the over-the-horizon approach as a form of limited force, as a strategic and moral alternative to war which incurs lower risks and costs. But from a legal perspective, the administration maintains that the use of limited force, insofar as it is advancing the global armed conflict against terrorist groups, does constitute a “war” for the purposes of determining which rules govern the conduct of hostilities and who may be detained. The over-the-horizon strategy, in other words, is portrayed both as war and an alternative to war, where the laws of war apply regardless.

Policy efforts to sanitize the lexicon surrounding the use of force have added to this conceptual confusion. In the mid-1970s, policymakers debated whether the United States should engage in political assassinations, prompting President Gerald Ford to issue an executive order banning this practice. But moral reservations about assassinations appeared to recede as the lexicon shifted to “targeted killing,” “lethal action,” and now “over-the-horizon” operations, a term devoid of the negative connotations of killing and war. Along the way, policymakers often have relied on limited force as a means of waging war by another name.

Decades of national security lawyering have enabled policymakers to wage this form of war, giving the executive branch unparalleled freedom of action against the metastasizing threat of transnational terrorism. The executive branch has relied on increasingly strained interpretations of the 2001 AUMF (and, to a lesser extent, the 2002 AUMF) as the legal justification for attacking groups which did not even exist when Congress passed the authorizations. These operations have been reported to Congress only on an ad hoc basis, since the executive branch maintains that “hostilities” which fall below the threshold of “full military engagement” are not necessarily subject to the 48-hour reporting requirement and 60-day termination provision contained in the War Powers Resolution of 1973.

The National Security Powers Act of 2021, a bipartisan bill which would close this loophole, defines hostilities as “any situation involving any use of lethal or potentially lethal force by or against United States Forces.” (A companion bill in the House contains a similar definition.) This is a welcome move which would give Congress, and the American people, more insight and input into lethal operations. But by broadening the term “hostilities” to include all instances of the use of force, lawmakers should take care not to blur the line between limited force and war. In order to leave the war path, limited force must be viewed as distinct from war and subject to stricter standards as a matter of law, rather than mere policy.

The Tipping Point

In the tumultuous days following the 9/11 terrorist attacks, many advocated for adopting a law enforcement approach. Proponents of this approach argued that terrorism was a “crime against humanity,” and that terrorists should be arrested and tried in accordance with domestic and international criminal law. When this argument failed to gain traction, U.S. policymakers and senior lawyers insisted the United States eventually would reach a “tipping point” where terrorist groups were largely defeated and law enforcement would suffice to deal with threats to international peace and security.

That tipping point never came.

For years, U.S. presidents claimed victory against al-Qaeda and ISIS while continuing to wage war on “terrorism.” Policymakers neglected to set any recognizable end point for this war, any achievable milestones which, once reached, would signal a return to peace. Without the prospect of a negotiated settlement, victory was measured not in terms of the restoration of order, but more in terms of bodies. Killing thus became both the principal means and end in the war, even as real threats—foreign and domestic—persisted.

Today, there is still no victory in sight.

While over-the-horizon operations have produced real tactical successes, there are now more terrorist organizations worldwide than there were twenty years ago. Without access to classified information, it is difficult to assess whether these operations have made civilians safer, especially when they appear to create at least as many terrorists as they kill. Even assuming that drone strikes have prevented another 9/11-style attack, the sheer number of over-the-horizon operations in the past two decades indicates significant mission creep in the war on terror.

At the same time, the goal of eliminating terrorist threats has never been achieved. In a speech articulating core counterterrorism principles for the Biden administration, Assistant to the President for Homeland Security Dr. Liz Sherwood-Randall observed that “even though we judge that the threat of large-scale attacks against the homeland is currently diminished, we must remain vigilant.” The Director of the National Counterterrorism Center Christine Abizaid similarly urged U.S. officials not to be “complacent” in light of “ideologically diffuse and geographically diverse” terrorist threats. And in a Senate hearing last month, the Chairman of the Joint Chiefs of Staff General Mark Milley ominously warned that transnational terrorist groups in Afghanistan could reconstitute and threaten the U.S. homeland in as little as 12 to 36 months.

The notion that terrorism can never be defeated suggests that the United States needs to build resilience and mitigation measures and, yes, learn to live with it. Borrowing from Israel’s playbook, some counterterrorism experts have proposed adopting a “mowing the grass” approach, where the United States periodically conducts attacks to manage, rather than eliminate, terrorist threats. Such an approach is likely to gain traction in policy circles, particularly since the alternative—the law enforcement path—poses significant challenges in spaces of contested and fragmented order, where local governments are “unwilling or unable” to address terrorist threats.

Another approach toward learning to live with terrorism, one that more closely aligns with the “values” that the Biden administration says it wants to uphold, would be to set higher standards for counterterrorism operations. These standards begin with a willingness to forfeit some operational flexibility in exchange for leaving the war path, even at the risk of not being able to prevent every terrorist threat. Ending the war on terror requires a paradigm shift which recognizes that, while all forms of terrorism pose a threat, not all threats rise to the level of necessitating a war.

Choosing to Leave the War Path 

In the wake of the August 29 drone strike in Kabul, which mistakenly killed an innocent aid worker and his young family, the policy debate has rightfully focused on whether U.S. procedures for direct action are sufficiently rigorous. Yet it would be a mistake to focus only on the conduct of such operations, without addressing fundamental issues concerning whether the use of force is both justified and judicious in the long term. Tinkering with Obama and Trump-era procedures for direct action will not produce real change and may perpetuate, not end, the forever wars.

In order to end the war on terror, the Biden administration should focus on the initiation and termination of hostilities. After all, a war lasts “forever” only if it has no clearly demarcated beginning and end. Addressing the initiation of hostilities starts with war powers reform and repealing outdated authorizations for use of military force (AUMFs). Instead of vaguely committing to work with Congress to replace the 2001 AUMF with a “narrow and specific framework,” the administration should engage congressional staffers proactively to determine how to implement the reforms that Tess Bridgeman, Ryan Goodman, Stephen Pomper, Steve Vladeck, and others have proposed here and here.

Congress, for its part, should avoid simply replacing the 2001 AUMF with an “updated” version of the law. A new AUMF that spans multiple groups would only further lend credence to the view that the United States is engaged in a monolithic “war” against terrorism. Instead, Congress should simply repeal the 2001 AUMF and then pass separate AUMFs for each group that poses a specific, direct threat of attack against the United States and limit those U.S. force commitments to a discrete geographic location. In doing so, Congress would take a consequential step toward leaving the war path by rejecting the notion that counterterrorism operations are part of a global armed conflict.

Rejecting the global war on terror implies that the majority of over-the-horizon operations will fall below the threshold of armed conflict. In such cases, drone strikes, special operations, and train, advise, and assist missions should follow conditions approximating those of self-defense, where force can be used only to stop a temporally imminent threat of attack. This would preclude resorting to tactics that often result in the most civilian harm, notably targeting unidentified individuals based on factors such as their group membership, affiliation, gender, or patterns of activity. And it would require U.S. officials to adopt a posture of strategic restraint where force is authorized only when there is high epistemic certainty, based on multiple intelligence streams, that it will prevent an imminent threat to life.

Most importantly, the Biden administration must consider when and how the war on terror ends. Beyond stopping attacks that are truly imminent, all force, even limited force, is justified only insofar as it provides a window of opportunity for diplomacy and other policy tools to work. But drone strikes and special operations may detract from broader policy efforts to counter violent extremism and rarely, if ever, lead to negotiated settlements which would pave the way for peace. Without an overarching plan for restoring order and transitioning counterterrorism operations to local government control, over-the-horizon capabilities will serve only to entrench existing patterns of domination within the international system, allowing powerful states to hold one group of people perpetually at risk in an attempt to guarantee the safety of another. If the Biden administration is serious about putting human rights—and America’s long-term interests—at the center of its foreign policy, then ending the war on terror would be a good place to start.


Image credit: MQ-9 Reaper U.S. Air Force photo