The single most challenging, interesting, and profound comments I have read about President Obama’s speech the other day is this post by Bobby. Drawn from his ongoing book project, Bobby poses the question of what the end of the conflict—sought by the Left for years and dangled before the American people in the President’s speech with passion and at length—really means. Specifically and most importantly, Bobby asks whether we have already reached it and just haven’t noticed:
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?
Bobby quotes from his book manuscript—written long before Obama’s speech based on prior administration statements:
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.
. . .
[O]ne 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.
Bobby concludes—in light of Obama’s speech—that “the current shadow war approach to counterterrorism doesn’t really require an armed-conflict predicate—or an AUMF, for that matter.”
I have been thinking about this arresting conclusion—call it the Chesney Conjecture—all weekend, and I want to pose some questions about it. If the Chesney Conjecture is correct, its corollary is that we are already substantially at peace. Yes, we are in a wind-down phase with respect to operations in Afghanistan. And yes, we have some legacy detainees, both at Parwan and at Guantanamo. But Bobby’s key point is that nothing outside of those spheres that is currently taking place under the AUMF could not also take place under a post-AUMF regime based on self-defense—particularly given the administration’s fulsome notion of imminence of threat.
So the first question is an empirical one: Is the Chesney Conjecture correct? Put another way: Leaving aside residual detention operations and residual combat operations in Afghanistan, can anyone identify U.S. operations anywhere in the world that rely on the AUMF that would not also find support in self-defense law given the US’s interpretation of imminence? If so, what are the set of activities in which the US is currently engaged that will have to stop with the lapsing the AUMF?
If the answer to this question is a null set and the logical conclusion is that we are already at peace (outside of Afghanistan), how do we feel about what we might term a militarily active peace—that is, a peace in which drone strikes and special forces operations take place regularly, a peace that is so minimally different from warfare that nobody (except Bobby) even noticed that we had transitioned from wartime to peacetime?
If the Chesney Conjecture is correct, it follows as well that the current debate over the future of the AUMF—a debate in which Bobby and I have both actively participated—is a bit of a misfire. Rather than asking what new authorization the president may need to conduct the shadow war, the question we should be asking is: What sort of authorization—if any—should Congress give to the executive branch for the routine use of military force in peacetime? If we frame the question this way, is there greater room for agreement between those who have argued against and those who have argued for openness to a new AUMF?
Finally, if the Chesney Conjecture is right, it follows that the real role the AUMF is playing (outside of Afghanistan) may lie only in certain very-specific exertions of power at the intersection between military and civilian authorities—for example, in giving the power to hold Ahmed Warsame for two months on a warship before turning him over to prosecutors. Can we identify all of these interstices, and is it possible to imagine narrow legislation, rather than a broad authorization for the use of force, to handle these situations?
Last week, the President talked about winding down the conflict under the AUMF. The week before that, the Defense Department declared that the conflict could go on for another two decades. Bobby now poses the question of whether it has already meaningfully ended. It’s a huge, conversation-changing question—one whose implications we need to talk through.