The Global War on Terrorism – Searching for a Controlling Legal Authority

The Pentagon is in the throes of developing an new and more aggressive plan for military operations in the Global War on Terrorism (GWOT). According to the Washington Post, the new (classified) plans cover

[A] wide range of overt and clandestine military activities — such as man-hunting and intelligence gathering on terrorist networks; attacks on terrorist training camps and recruiting efforts; and partnering with foreign militaries to eliminate terrorist sanctuaries. Together, they amount to an assignment of responsibilities to different military commands to conduct what the Pentagon envisions as a “long war” against terrorism.

These plans largely refer to U.S. military operations outside Afghanistan and Iraq (i think). One difference, for instance, is that the U.S. military reportedly no longer have to get ambassadorial approval to conduct certain kinds of military operations in countries where the U.S. is not officially authorized to engage in open military operations.

From a policy perspective, it makes sense to have a military plan to combat terrorist operations outside of Iraq and Afghanistan. But what is the legal authority for the Pentagon to do so? Can they, for instance, conduct clandestine operations in countries other than Iraq and Afghanistan under the existing authorizations for the use of military force? Do they need such congressional authorization? From an international legal perspective, are U.S. military operations governed by the law of war (the answer is surely yes), but if so, what limitations does that law impose?

I am not sure what the answer to such legal questions are, but I would be curious to hear the Pentagon’s views. I certainly hope someone has figured all this out already before they end up being fought out in some court or international tribunal down the road.