Detention: Law of: D.C. Circuit Development

Beyond the Battlefield, Beyond al Qaeda: The Destabilizing Legal Architecture of Counterterrorism

By Robert Chesney
Wednesday, August 29, 2012, 11:42 PM

I'm happy to report that I've recently completed drafting an article that has been much on my mind for the past few years.  Beyond the Battlefield, Beyond al Qaeda: The Destabilizing Legal Architecture of Counterterrorism (Michigan Law Review, forthcoming 2013) is now posted to SSRN.  In it, I argue that (i) there is a widespread perception that the legal framework for detention and targeting has reached a point of relative stability thanks to a remarkable wave of interbranch and inter-party consensus since 2008; (ii) this facade depends almost entirely on the existence of a large-scale combat deployment to Afghanistan and a presumption that there exists some degree of clarity as to identity and organizational boundaries of the opponents against whom detention and force may be used; (iii) this facade is crumbling in the face of long-term strategic trends including the fragmentation of al Qaeda and the U.S. government shift toward shadow war; and (iv) all of this will have a profoundly disruptive effect on the status quo legal architecture.  I mean the paper to be something of a wake-up call for policy-makers and legislators, and am happy to hear from readers with their criticisms or suggestions.  In any event, the complete abstract is here (and the paper itself is available by clicking on the link above):

 By the end of the first post-9/11 decade, the legal architecture associated with the U.S. government’s use of military detention and lethal force in the counterterrorism setting had come to seem relatively stable, supported by a remarkable degree of cross-branch and cross-party consensus (manifested by legislation, judicial decisions, and consistency of policy across two very different presidential administrations).  That stability is certain to collapse during the second post-9/11 decade, however, thanks to the rapid erosion of two factors that have played a critical role in generating the recent appearance of consensus: the existence of an undisputed armed conflict in Afghanistan as to which the law of armed conflict clearly applies, and the existence of a relatively-identifiable enemy in the form of the original al Qaeda organization.

Several long-term trends contribute to the erosion of these stabilizing factors.  Most obviously, the overt phase of the war in Afghanistan is ending.  At the same time, the U.S. government for a host of reasons places ever more emphasis on what we might call the “shadow war” model (i.e., the use of low-visibility or even deniable means to capture, disrupt, or kill terrorism-related targets in an array of locations around the world).  The original Al Qaeda organization, meanwhile, is undergoing an extraordinary process of simultaneous decimation, diffusion, and fragmentation, one upshot of which has been the proliferation of loosely-related regional groups that have varying degrees of connection to the remaining core al Qaeda leadership.

These shifts in the strategic posture of both the United States and al Qaeda profoundly disrupt the stability of the current legal architecture upon which military detention and lethal force rest.  Specifically, they make it far more difficult (though not impossible) to establish the relevance of the law of armed conflict to U.S. counterterrorism activities, and they raise exceedingly difficult questions regarding just whom these activities lawfully may be directed against.  Critically, they also all but guarantee that a new wave of judicial intervention to consider just those questions will occur.  Bearing that in mind, I conclude the paper by outlining steps that could be taken now to better align the legal architecture with the trends described above.