This post draws on material from my current book project, the concluding chapter of which considers the legal architecture of counterterrorism in a “postwar” setting…and advances the argument that we already have largely crossed into that world.
In yesterday’s speech, President Obama repeatedly referred to the possibility that the armed conflict with al Qaeda may end, and indeed that it must and should end lest we find ourselves in a perpetual state of war. It is the same perspective previously articulated by then-DOD General Counsel Jeh Johnson in his Oxford Union address, but stated in more detail here–and with much more impact on public narratives, as seen for example in today’s New York Times editorial touting the “End of the Perpetual War.”
This is an attractive vision in many ways, and one certainly hopes that the day will soon arrive when al Qaeda has been devastated to the point where it is proper for the president to declare that the armed conflict has indeed run its course. Time will tell whether and when that point arrives. In the meantime, however, it would be good to take a closer look at what it would mean, legally speaking, to move to a “postwar” model.
Obviously there will be a rhetorical difference from the status quo, and that alone could have a real impact on domestic politics and related considerations such as budgetary allocations. But set all that aside. What I’d like to concentrate on is the question of what legal differences would follow with respect to detention and targeting.
Formally speaking, the answer is straightforward. With respect to detention, the end of the conflict by definition spells the end of authority to detain for the duration of hostilities (albeit subject to some reasonable wind-up period). And with respect to targeting, the end of the conflict would preclude invocation of status-based targeting (i.e., targeting individuals based either on their membership in the enemy force or, perhaps, on a continuous-combat function theory that approximates status-based targeting). The question is: would any of that matter in actual practice?
To be sure, it has clear implications for the legacy population of detainees at GTMO and Parwan (my understanding is that the transfer of detainees at Parwan to Afghan control has been focused on the Afghan detainees, and has not necessarily reached the non-Afghans); those folks will need to be prosecuted or released in a postwar world. Other than that, though, it is not clear that moving from war to postwar would really matter much in terms of available options. Here is an illustrative passage from my book, written prior to hearing yesterday’s speech:
The post-9/11 claim that we are in an “armed conflict” with al Qaeda and its associated forces has long since ceased to matter in strict legal terms, other than in connection with the lingering detention of the legacy populations at GTMO and (for non-Afghan detainees) at Parwan. We have not taken new detainees into long-term military custody in many years, and there is no prospect that we will do so for years to come. What we do still do is use lethal force, but on close inspection, our uses of force outside of Afghanistan arguably do not depend on the existence of an armed conflict after all. As the Brennan speeches underscored, the government as a matter of policy has adopted constraints that limit the use of force outside the “hot battlefield” to scenarios involving an “imminent threat” to life in circumstances where capture is not feasible (albeit subject to an understanding of that phrase that would better be described as a “continuous threat” standard). This is far more restrictive than the status-based targeting model associated with armed conflict. Indeed, it is at least as restrictive as the boundaries of the self-defense model developed during the Reagan and Clinton years, discussed earlier.
To be sure, that model was acted upon only rarely in the pre-9/11 era. There were many reasons for this, but a major one was sheer lack of practical capacity: we had little relevant intelligence when it came to tracking individual terrorist threats, and even when we obtained actionable intelligence our capacity to strike normally was limited by the multi-hour process associated with cruise missiles.
Today things are quite different. The capacity for collecting the requisite intelligence has expanded by leaps and bounds thanks to sweeping institutional and technological changes over the past dozen years, and in the same period we have acquired an extraordinary capacity to strike quickly and precisely thanks to armed drones. In short, the practical constraints on using force in self-defense have been removed, and if we find ourselves once more without a claim of armed conflict to support uses of force, we may well discover as a result that the pre-9/11 legal model is much less constraining than commonly assumed. Indeed, one might conclude that there is nothing currently done outside of Afghanistan by way of targeting under the color of the law of armed conflict that could not be done under color of the pre-9/11 self-defense model. Combined with the abandonment of detention as an option, in fact, it makes no sense to talk of a return to the pre-9/11 framework; we already are there in practice.
Yesterday’s speech reinforces my conclusion, as it clarifies both that the long-term detention option is defunct and that we are using force within boundaries that will be no different postwar thanks to the flexibility of the pre-9/11 self-defense model. Put another way, it seems to me ever clearer that the current shadow war approach to counterterrorism doesn’t really require an armed-conflict predicate–or an AUMF, for that matter. If that is correct, it will please some and horrify others. At any rate, I’d appreciate hearing from readers as to whether they think this is in fact correct.