Thursday, May 5, 2011

What is war?

One of the questions that's been floating around over the last few days is as follows: did the United States have the authority to kill Osama bin Laden? at an answer was taken by Doug Mataconis. Not to give away his conclusion, but his post was entitled Yes, The Operation To Kill Osama Bin Laden Was Legal And Constitutional. Specifically, Mataconis cites the "Authorization For Use Of Military Force Against Terrorists," which includes the following text:

...the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

The authorization cites selected provisions of the War Powers Resolution of 1973, which was designed fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgement of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicate by the circumstances, and to the continued use of such forces in hostilities or in such situations.

But to some, the War Powers Resolution itself dodges a major Constitutional question - namely, that it is the U.S. Congress that has the power to declare war (see Article 1 Section 8 of the U.S. Constitution. As I've noted, no Congress has declared war since 1941. If you look for a Constitutional declaration of war for the War on Terror, you won't find it.

But is the war on terror really a war? Back in 2009 (in the context of discussing President Obama's eligibility for a Nobel Peace Prize), Alex Scoble argued that it wasn't:

To be at war, you have to 1) declare war 2) be fighting against a sovereign country 3) that has an actual army

Scoble (who subsequently modified his thinking) is not the first person to argue that a particular war is not a war - Korea, you'll recall, was a "police action." Even President Obama himself shies away from using the phrase "war on terror."

Perhaps this is a semantic discussion, but it goes well beyond the discussion of the legality of dumping a six foot-plus man into the sea. The word "war" has particular legal and business ramifications, and certain contractual provisions either take effect or do not take effect in time of war. And there's also a different attitude in peacetime vs. wartime - and to some, this is peacetime:

What really burned my butt, tho, was coming home and realizing that the civilian population - that is, 99% of Americans - were going about their daily business as if it's peacetime.

The reason for that goes back to the actions of our administration between 9/11 and the Iraq invasion: There was no effort to expand or military, and GWB's idea of "contributing to the war effort" was, "Go Shopping!" or "Put a magnet on your car!"

And even the writer, IrritatedVet, dared to denigrate his then-Commander in Chief by his comments.

Which raises the question - how can we logically argue that Osama bin Laden was shot in wartime when Congress has not declared war, the President doesn't refer to military activities as a war, and the nation itself doesn't act like it's at war? Yes, travelers go through porn scanners, but that's not exactly the same as changing the material used to make pennies from copper to steel.

Of course, it doesn't help when the same people who claim that the killing of Osama bin Laden was illegal are the same people who claim that Obama is soft on terrorism.

So will the Republicans quote that neocon George O'Dowd?

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