Politics & National Security

We are (or Will Soon Be) at War With the Islamic State

By Jack Goldsmith
Friday, September 12, 2014, 9:05 AM

Secretary of State Kerry said yesterday:

We're engaged in a major counterterrorism operation [against the Islamic State], and it's going to be a long-term counterterrorism operation.  I think war is the wrong terminology and analogy . . . .

Though the Secretary was not thinking in legal terms, it is worth noting that his statement is belied by the Obama administration’s legal theory.  The Obama administration has long maintained that under the AUMF the United States is in an “armed conflict” with al Qaeda and associates.  The new legal theory is that the Islamic State either is al Qaeda or is (or used to be) associated with al Qaeda within the meaning of the AUMF.  Thus the administration’s legal theory is that the United States is or in the near future will be in an armed conflict with the Islamic State.  And “armed conflict” is the modern term for war.