21 Jan President Obama Endorses the WAR on Terror
I admit I am not exactly looking forward to the Obama years. Still, it did warm my heart a bit to hear the new U.S. commander-in-chief endorse the continuation of the war on terrorism in his inaugural speech yesterday.
That we are in the midst of crisis is now well understood. Our nation is at war, against a far-reaching network of violence and hatred. (emphasis added)
This may not seem like a big endorsement, but as a legal-conceptual matter, this is significant. Obama, like Bush, is going to refer to the ongoing series of military actions against Al-Qaeda and its associated networks as a “war” rather than as a law-enforcement or other non-military activity. This is not totally surprising given Obama’s fairly bellicose campaign pledges to commit more troops to Afghanistan and to bomb Pakistan with or without that country’s permission. But it should put to the rest the tiresome critique that the Bush Administration was improperly elevating a criminal law problem into an armed conflict. That is to say, although there will continue to be legal debates about whether the U.S. is, and can really be, in an armed conflict with a non-state entity, it seems all but certain that on this issue, President Obama is going to adopt the same approach as former President Bush: The U.S. has been, and will continue to engage in a war on terrorism.
Biden has previously claimed that the AUMF was equivalent to a declaration of war against Al Qaeda. And there’s no question under domestic law that it’s a war. See Hamdi and Padilla v. Hanft. Obama is not so dumb, insensible, or far to the left as to repeat long discredited talking points.
Ahem, sorry, but last time I cheked the legal definition of war was not exhausted by the alternative between what Obama and Bush (may) think of what the word ‘war’ means.(*) If Obama and Bush agreed between themselves that a dog were a cat, the dog would remain a dog. But of course they could get Congress to pass legislation to the effect that, in domestic US law, dogs would henceforth be called ‘cats’. I’m afraid that most (European?) international lawyers would still hold the term ‘war on terror’ little more than a rhethorical concept based on questionable political assumptions. And that dogs are dogs, too.
(*) Indeed, last time I checked the political spectrum of most countries went well beyond ‘Bush’ and ‘Obama’ on both the right and the left.