Did the United States recently engage in an illegal act of war?

On February 19, “The New York Times” placed on its front page a story headlined, “In a Shift, U.S. Uses Airstrikes To Help Kabul.” As reporter John Burns wrote, “American forces appear to have opened a new phase in the war in Afghanistan with two bombing raids over the weekend that Afghan commanders in the area said were aimed at clashing militia forces rather than the Taliban or Al Qaeda.” The article noted that the U.S. Central Command had issued a statement declaring that U.S. aircraft had dropped precision-guided bombs when “enemy troops” struck forces loyal to the government of Hamid Karzai near Khost. The Pentagon said the pro-government forces had requested the U.S. airstrikes after being attacked by rival troops. Local Afghan commanders reported that the clash involved two tribal militias–but details were murky. Burns noted, “the bombing raids seemed to have placed the United States for the first time in a position of using American air power in defense of the [Karzai] government.”

In other words, the U.S. is taking sides in a civil war within Afghanistan. Perhaps that is not bad policy. Perhaps it is in the interest of the United States and good for Afghans for the U.S. military to come to the rescue of the secular, coalition government of Hamid Karzai, which has recently been shaken by the assassination of a Cabinet member and non-stop factionalism. Still, there’s a problem. Who gave George W. Bush and the Pentagon permission to wage this sort of war in Afghanistan? Not Congress.

On September 14, Congress passed a joint resolution authorizing Bush to go to war in response to the horrific events of September 11. The resolution did not identify a specific target for Bush. Instead, Congress agreed to a broad but specific definition:

“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.”

Nothing in the resolution allows the United States to use force to protect one militia (be it pro-Karzai or not) from another militia. This appears to be unconstitutional mission creep.

It’s unclear whether these bombing raids were a one-time exception or the start of a new pattern of warfare. Karzai has said he will not hesitate to ask for security assistance in order to preserve his government. It certainly looks as if he is going to need such help, and he may well deserve protection and military support. But Bush should not guide the United States into fractious fighting in Afghanistan without first consulting Congress. He is authorized to go after terrorists and their collaborators, not to blast warlords.

Though it did send in the bombers to aid forces allied with Karzai, the Bush Administration has been loath to participate in the peacekeeping force being established in Afghanistan, essentially saying, “That’s not our job.” But if the White House and the Pentagon want to use force to preserve Karzai’s administration, it has two choices. Sign up with the U.N. peacekeeping mission or ask Congress to okay the unilateral use of American troops and bombers on behalf of the current Afghan government. Yes, abiding by the Constitution during wartime can be a pesky task. (And asking questions about the conduct of the war in Afghanistan can be a lonely endeavor. See the two posts below. More information keeps coming out about civilian deaths caused by U.S. airstrikes in Afghanistan. For example, look at the front-page story in today’s “Washington Post,” which reports that villagers outside of Kandahar say more than 100 civilians were killed during U.S. bombing raids in their area. But what political or opinion leaders have publicly raised concerns regarding the bombing campaign in Afghanistan?)

The joint resolution also poses a problem for the get-Iraq crowd in the Bush White House. So far there is no evidence Saddam Hussein was a party to the crimes of September 11. There is no indication Iraq harbored or aided the perps. Consequently, there is no authorization for a strike against Iraq. (The same would apply to the rest of the “axis of evil”–Iran and North Korea). If Bush does want to attack Iraq–with all the conflicting hints coming out of the administration, it is hard to assess how serious he is in this regard–he will have to do what his father did before the Gulf War in 1991: seek approval from Congress.

But recent events in Afghanistan should give Bush some pause when he ponders assaulting Iraq. It seems that booting a government may be much easier than putting together a government. The Karzai government, after only weeks in office, is endangered by in-fighting and out-fighting. In Iraq, the United States might be able to de-Saddamize the regime. But what kind of government would follow?

While we’re on the subject of Iraq, here’s a reminder: When Dick Cheney was head of Halliburton, two of the company’s subsidiaries did business with Iraq. As “The Washington Post” reported last June, those two ventures “signed contracts to sell more than $73 million in oil production equipment and spare parts to Iraq while Cheney was chairman and chief executive officer.” When that story came out, Cheney’s spinners tried to distance him from the transactions, which were legal. But executives involved in these deals said Cheney was in a position to be aware of them. By the way, Cheney has long been critical of U.S. sanctions against such countries as Iraq, Iran and Libya, maintaining they punish American companies. In fact, a few months prior to September 11, the Bush Administration was asking the U.N. to end an 11-year embargo on the sale of certain goods–including oil-related equipment to Iraq.

Before September 11, Iraq was a fine place for U.S. firms, like Cheney’s Halliburton, to do business. Afterward, Iraq was first among equals in an “axis of evil.” Shifting aims in Afghanistan, shifting aims in Iraq. War is slippery business.