The Obama administration has come under a good deal of criticism—and no small amount of ridicule—for arguing that U.S. military involvement in the NATO operation currently underway in Libya does not rise to the level of “hostilities” that require Congressional authorization. Yet when offered an opportunity to do so, Congress has also not helped to clarify matters; the House of Representatives decided not to endorse the mission, but also did not terminate the funding for the operation. So are we at war—or not? And with drone operations underway in both Yemen and Somalia, are U.S. forces engaged in wars on the Arabian peninsula and in the Horn of Africa?

There are so many ways in which the United States can find itself in a situation where its armed forces are engaged in action that there are no longer clear guidelines as to what constitutes “peacetime” and “wartime.” Beyond the propensity of presidential administrations to label any major policy initiative a “war” (like the “war on poverty”), the reality is that at least two of these so-called “wars”—the “war on drugs” and the “war on terror”—have led to the deployment of military forces engaged in combat activities. Indeed, the evolution of Plan Colombia—initially billed by the Clinton administration as a drug interdiction program, and approved as such by Congress—into a much more expansive counterterrorism and counterinsurgency program—shows the various policy backdoors through which U.S. personnel can be sent into combat situations without triggering either the War Powers Act or a need for a formal declaration of war. Plan Colombia, in its early days, also showed how Congressional restrictions could be circumvented: in order to reassure Congress that the U.S. military would not be dragged into a Colombian civil war, U.S. military personnel were specifically prohibited from engaging in combat or being present in situations where combat would be imminent. However, there were no such bans enacted applying to contractors in the employ of the State Department.

There are two factors that have served to degrade the definition of war over the past decade. Following 9/11, the America and many of its allies dramatically escalated a wide array of counterterrorism efforts. For powerful nations such as the United States may be tempted to take advantage of the tremendous disparity in military capability between themselves and substate terrorist groups with limited conventional defenses. But responding to terrorist targets of opportunity also involves assessing fluid situations, and Congressional consultations can be cumbersome. If the destruction of a terrorist training camp is the goal of an operation—assuming the U.S. can locate said camp—this raises the tempting prospect of a rapid but decisive strike against the group.

Second, the states where some terrorist organizations have been found—such as Yemen and Somalia—are either willing to acquiesce to counterterrorism operations by outside powers or are in poor positions to retaliate. As a result, instruments of war are being used in acts of war without a declaration of war.

War has also fallen out of favor. Technically outlawed by the Kellogg-Briand pact altogether, war is also forbidden by the Charter of the United Nations except in the case of self-defense or if authorized by the Security Council. As a result, no country engages in formally declared war anymore: military actions are “self-defense,” “police actions” or “interventions.” It is noteworthy that the use of the phrase “war on terror”—one that came into common use during the George W. Bush administration—was resisted at one point by Chairman of the Joint Chiefs of Staff General Richard Myers. When the senior uniformed officer responsible for prosecuting the war on terror asserts that it is not a war, the confused state of our political lexicon in this area is made as plain as could be.

Yet, in political circles, use of the term “war” has not abated. Last week, as the Obama administration released its new counterterrorism strategy, the president’s chief counterterrorism official declared the release of the document to be the official end of the use of the phrase “global war on terror.” He then immediately added that though the struggle “does not require a global war, it does require a focus on specific regions … We’re at war with al-Qaeda.” Of course, in a Constitutional sense, the United States hasn’t been at war in over sixty years, since Congress’s last declaration of war was against the Axis powers during World War II. But Brennan’s statement is one of the clearer examples of the political temptation to undermine the definition of war by using it casually. Stating one is “at war” is a strong statement that you are taking the problem with utmost seriousness, while offering a modicum of political protection from your opponents’ charges that you are not.

Statements such as “war on poverty” are more politically innocuous, since one does not use actual military force to prosecute such conflicts. But nonchalantly committing to a war on al-Qaeda does raise serious concerns. In informal parlance, it can communicate that all defensive measures are acceptable. And given that the new counterterrorism strategy makes explicit reference to targeting individual “adherents” to al-Qaeda, this raises the worrying possibility that the “sense of war” that the United States is a risk of embracing could last a very long time.

It is not clear, for instance, that the use of force by agents of the U.S. government rises to the level of war. As we recently argued,

consider the raid to kill Osama bin Laden (which, of course, was justified under the broad authority granted to the president by Congress three days after 9/11). Should a forty-minute raid conducted by several dozen commandos be considered an act of war—even though force was projected across borders, and without the permission of the host government? If not, how many more soldiers must be involved to cross the threshold between military action and war? How long must they be engaged? While there may be varying degrees of reasonableness to different answers to that question, any answer must have an element of arbitrariness to it.

Nor are political scientists much help. We observed:

The definition of war from the Correlates of War database defines war as a conflict in which there are 1,000 battlefield deaths. This, also, is an arbitrary number, selected to be large and yet not too large. Why is a conflict with 999 battlefield deaths not a war, but one with 1,001 is? Interestingly, the Falklands War (907 deaths) fails to meet this definition, while the less consequential 100 hour “Soccer War” between El Salvador and Honduras (approximately 2,000 killed) does meet the standard. The Correlates of War definition is also one that is designed solely to study wars after the fact, and is therefore useless in identifying wars in advance.

 

One cannot, after all, know how many casualties a conflict will generate before that conflict actually takes place.

More importantly, there has been a change in how military conflicts are fought. The emphasis on “effects-based operations” have shifted the purpose of operations from inflicting large amounts of casualties in favor of targeted strikes designed to produce pressure on a government. In analyzing the strategy of the 1999 Kosovo air campaign, Joshua Cooper Ramo observed that “Milosevic’s electricity … was far more important than his army”—and so instead of devastating attacks against massed military formations, NATO tried to “shut off the lights”—an approach which led to far fewer casualties.

So, by the Correlates of War standard, was the action against Yugoslavia over Kosovo a war or not, given the relatively light number of casualties? Yet from the perspective of Carl von Clausewitz, the Kosovo campaign—or the current operation in Libya—is very much a war—because both could be described as “an act of force to compel our enemy to do our will.” Joshua Rovner, an editor with the Journal of Strategic Studies, observes that the Clausewitzian definition is useful but it doesn't always qualify. In cases like action taken against Libya or al-Qaeda, the goal is to eliminate an enemy, not compel a change in his behavior.

Thomas Nichols has observed: “There is an unavoidable tension in the Constitution between the president's role as commander in chief (Article II, section two) and the power of Congress to declare war (Article I, section eight). Although Congress controls defense funding and the Senate must approve treaties, the legislature has little power over the actual execution of military operations.” But perhaps one step that could be taken to help bring clarity to these debates over whether or not presidents have exceeded their authority is to better define when military action rises to the level of war. The War Powers Act, in its current form, sets the bar at any dispatch of U.S. combat forces outside the country’s borders—something which presidents of both parties have consistently rejected since 1973 as a major infringement of the powers of the executive branch—an argument which also resonates with many members of Congress as well. On the other hand, abandoning any and all criteria opens the door to Congressional abdication of its Constitutional responsibilities to be a partner with the president in determining matters of war and peace.