Under new Defense Secretary Leon Panetta, a budget whiz intent on paring traditional war platforms, and the nation’s covert-action-savvy incoming CIA director, the soon-to-be-civilian Gen. David Petraeus, the process of turning war into something other than war is likely to grow even more intricate and subtle. Both men have already proved adept at fighting long-term actions in ways the public isn’t told about, in places such as Yemen.
And there will be new covert types of war, typified by the recent creation of a U.S. Cyber Command. “We talk about nuclear, we talk about conventional warfare. We don't spend enough time talking about the threat of cyberwar,” Panetta said at his Senate confirmation hearing. “There's a strong likelihood that the next Pearl Harbor that we confront could very well be a cyberattack that cripples our power systems, our grid, our security systems, our financial systems, our governmental systems.”
Scott Silliman, a former Air Force JAG and a highly regarded legal scholar on war at Duke University, says the United States is entering into a new arena with few rules, and the War Powers Resolution is already miles behind, legally, constitutionally, and practically. At the time it was enacted, he said, the law was so hotly disputed that no firm definition of “hostilities” was drawn up.
“Every time you’ve had a challenge against the president under the War Powers Resolution the courts have said that’s a political question. Everyone knows this is not going to go anywhere in litigation,” Silliman said. “It was passed because Congress had no control over what President Nixon was doing in Vietnam. But that was with a view toward very traditional armed conflict. Now we’re into asymmetric warfare, and ‘standoff’ warfare using drones in which you’re not even in the theater of operation when you fire the missiles. How do you define that? It is similar to the questions about cyber war. Is that warfare? Can you respond with military force?”
The refinement of the process of going to war has also become more necessary because polls show that Americans believe they no longer can afford wars of choice, wars with fuzzy humanitarian aims that don’t end in victory, or even expensive counterinsurgency campaigns that drag on and on, as in Afghanistan, Iraq, and Pakistan.
That means, in general, smaller military “footprints,” meaning the presence of large numbers of troops and equipment. And the smaller the footprint, the less a president has to worry about consulting Congress or the American people. All of which means that the question of when and how we go to war—or even what war is any more—will grow that much more slippery.