Detention: Operations in Afghanistan

On the Legal Consequences of Moving Away from the Armed-Conflict Model of Counterterrorism

By Robert Chesney
Friday, October 4, 2013, 3:03 PM

When it comes to detention and drone strikes, both critics and supporters of the status quo assume that abandoning the armed-conflict model would have not just diplomatic and legal effects but also a significant legal effect.  Critics bank on it, supporters fear it.  But what if their common assumption is wrong?  It's a question I address in a short piece this morning at Security States (a joint online project of Lawfare and The New Republic), titled "Would Abandoning the War Model of Counterterrorism Make a Difference from a Legal Perspective?"  This short piece in turn builds on the much-longer arguments I advance in an essay titled "Postwar," forthcoming next year in the Harvard National Security Journal.   From the opening of the Security States piece:

It has had many names: The Global War on Terror.  The Struggle Against Violent Extremism.  The War with al Qaeda.  Whatever one calls it, there is no doubt that one of the most controversial and significant ideas of the post-9/11 period has been the claim that the United States is in a state of armed conflict with al Qaeda (and perhaps more broadly).  This claim is the lynchpin for asserting the relevance of the laws of war, after all, and that legal architecture has long been understood to be pivotal to the U.S. government’s decision to employ military detention and lethal force as key elements of counterterrorism policy.  As a result, both critics and supporters of the status quo tend to assume that the crucial question going forward is whether we will continue to assert the existence of an armed conflict.  Critics hope that abandoning that model will sharply constrain if not eliminate these policies, and supporters of the status quo fear exactly that.

As a result of this common assumption, the national debate surrounding detention and targeted killing has tended to focus on whether and how long the war model might continue to exist (see, for example, part IV of Mark Bowden’s much-read Atlantic article “The Killing Machines”).  But what if the assumption is wrong?