I would like President Obama and Congress to lay down a few markers for U.S. citizens and the rest of the world, because the "Great War on Terrorism" (GWOT) is hopelessly muddled and prone to overreach.
First, in operational terms, the most important marker is that any terrorist group that we take action against must present a clear and present danger to the United States, because that is the measure by which we decide whether to take military action against other sovereign states. And as a practical matter, we must look where such terrorists are based. If they are acting in a sovereign state -- as they are most likely to do -- then we must act only with the permission of that state. Failure to act militarily without that state's permission would be a violation of that state's sovereignty. There is hardly any act more serious that the United States could undertake. Violating another country's sovereignty should never be done lightly, and never without clear consultations with said state. And again, as a practical matter, we should be extremely wary of violating any country's sovereignty, since they are prone to take the most extreme actions against us in response. The United States would do no less if the shoe were on the other foot.
Second, we must always make a clear distinction between state-sponsored terrorism and non-state-sponsored terrorism.
Bitter experience has taught us that non-state terrorists flourish in failed or failing states, like maggots in a rotting corpse. Such groups present a novel and special challenge to the United States. We know now that terrorist groups often hope that the U.S. will choose to put boots on the ground in failed states. Such groups flock to failed or failing states; in the first case for refuge and operational freedom; in the latter case often to foment total state failure to secure such operational freedom.
Furthermore, terrorist groups know that our presence in such states will provide them with ready and abundant targets in confusing environments where our rules of engagement are muddled and lead to the killing of combatants and innocent non-combatants alike. Terrorists do not care about non-combatants. Indeed they hope that innocents will be killed by indiscriminate use of American force, since such killings tend to bolster their recruitment and win over public opinion to their side.
State-sponsored terrorism, by contrast, is war by other, indirect means by our adversaries in other sovereign states. Where we can make a solid connection between the actions of terrorists against the U.S. and the states who sponsor them, then the U.S. should have the right to respond appropriately, up to and including military force against the sponsor state. The U.S. has made it fairly clear that it will hold state sponsors accountable. So this is not the real problem.
The main condition is that we must avoid conflating the two types of terrorism. The second condition is that our government should never fail to provide evidence of a clear and present danger to the United States (or its allies) before authorizing military force against non-state or state-sponsored terrorists, or the states who sponsor terrorists.
The U.S. Constitution makes no reference to terrorism. Terrorism did not exist in the late 18th century. It is a modern phenomenon. Nevertheless, the principle set down in the Constitution that the President must seek permission from Congress to declare war should still apply in the case of terrorist organizations. Our Founding Fathers' fear was not that the U.S. would make war against private individuals as opposed to other sovereign states; rather, our Founders were afraid that the Executive would deploy U.S. forces indiscriminately and non-judiciously. The same fear, the same likelihood, exists with regard to traditional warfare as it does with non-traditional counter-terrorism military operations.
