Detention & Guantanamo

Part II: Terrorist Groups and the Law of How Wars End

By Adam Klein
Tuesday, April 19, 2016, 7:19 AM

It is widely held that the inherent indefiniteness of the “war on terrorism” makes it utterly unlike previous American wars. Although there’s substantial truth in that truism, the reality is more nuanced, for two reasons.

The first reason, which I discussed in my previous post, is that the exercise of war powers in past American wars has often bled messily into the postwar, requiring courts to answer difficult questions about when the war ended.

My focus here is on the second reason, which is that terrorist groups are not in fact the diametric opposite of traditional state adversaries. Rather, on the hierarchy-anarchy continuum they fall somewhere in between a rigidly hierarchical state adversary and a leaderless levée en masse.

For example, it’s commonly believed that it is not possible to achieve a determinate end in a conflict against a terrorist group. Yet many terrorist movements have ended at a single, climactic, and easily identifiable moment. Sometimes this happens through military defeat: The Sri Lankan military annihilated the Tamil Tigers and killed their charismatic leader in a decisive 2009 battle. Other groups eventually achieve their aims and transition into political parties: for example, Menachem Begin’s Irgun group in mandate-era Palestine. Others, like the Provisional Irish Republican Army and the Palestine Liberation Organization, did not achieve all of their aims but nonetheless agreed to demilitarize join a political process. Columbia’s FARC may do so as well.

This has important implications for our model of how such conflicts end under law. The more a given terrorist group resembles a traditional state adversary—if it is cohesive and hierarchically organized, with an effective principal-agent relationship between leaders and followers—the more relevant and useful the traditional binary, on/off model of how wars end will be.

The problem is that al Qaeda, ISIS, and other jihadi groups are, as the conventional wisdom suggests, materially dissimilar from these past examples. Most importantly, they are motivated not by a concrete political program set by a particular leader or organization, but by millenarian religious fanaticism. This means that they are unlikely to achieve their political vision, which would require upending the global political and economic order. But it also means that the death of a particular leader would not be—as Osama bin Laden’s death was not—a particularly meaningful indication that the broader conflict is drawing to a close. Time and again, when one jihadi group is defeated or splinters, members have dispersed and joined others. “Lone wolf” jihadis inspired but not directly controlled by an organized terrorist group are even more confounding for a top-down, organization-focused model of how the conflict ends.

The key takeaway here is that jihadi groups are a combination of “top-down” elements that resemble, to some degree, traditional state adversaries, and “bottom-up” elements that look more like a leaderless movement.

This has important implications for how we think about this conflict as a legal construct. Some of the suite of legal authorities that the “war on terror” encompasses—for example, the use of military force in a given geographic area, or the power to impose financial sanctions on a group, its followers, and those who assist it—are logically liked to these “top-down,” hierarchical aspects of the terrorist groups covered by the AUMF.

Other legal authorities, however, are not logically tied to the demise of a terrorist group’s leadership or organizational detention. The most notable of these is detention of captured terrorists.

Detention of captured enemy soldiers during wartime is preventive: its purpose is to prevent captured enemy soldiers from returning to the battlefield. Because that preventive purpose evaporates once a conflict ends, the Third Geneva Convention requires that POWs “be released and repatriated without delay after the cessation of active hostilities.”

Critically, however, this rests on the assumption that the captured soldier is an obedient agent of his sovereign. During the conflict he is “bound by an allegiance which commits him to lose no opportunity to forward the cause of [the] enemy.” Once the conflict is over, we assume that he will faithfully obey the enemy sovereign’s order to stand down.

This assumption breaks down in the case of terrorist groups. A fanatical jihadi dissatisfied with his commander’s defeatism, negotiation, or moderation is unlikely to obey an order to stand down if he believes that God wishes him to continue fighting. Rather, he is likely to seek out a more aggressive commander or relocate to a more active arena, as many veterans of the Afghan jihad did after the Soviet withdrawal and the fall of the Communist regime.

Of course, the plurality opinion in Hamdi appeared to link the permissible duration of detention under the 2001 AUMF with whether U.S. forces remain engaged in active military hostilities in Afghanistan. The AUMF, Justice O’Connor wrote, must be read to “include the authority to detain for the duration of the relevant conflict”; in determining whether the conflict continued, she noted that “[a]ctive combat operations against Taliban fighters” were then “ongoing in Afghanistan.” The plurality opinion concluded that “[if] the record establishes that United States troops are still involved in active combat in Afghanistan,” the detentions of those captured fighting with the Taliban “are part of the exercise of ‘necessary and appropriate force,’ and therefore are authorized by the AUMF.”

Judge Kessler in Al Razak and Judge Lamberth in Al Warafi read this to mean that judges are authorized to weigh evidentiary submissions on whether hostilities have concluded in Afghanistan, and if they have, to release AUMF detainees. As I explained in my previous post, I don’t think that’s right.

But if the Hamdi plurality did intend to fix the end of U.S. combat operations in Afghanistan as a hard, judicially enforceable end date for AUMF detention, then that was quite unwise. For the end of U.S. military operations in Afghanistan is an utterly inapt yardstick for determining whether the “relevant conflict” has ended for ideologically committed jihadis for whom Afghanistan is merely one front among many in a broader conflict. If Afghanistan cools down, jihadis looking for a fight can and will travel to find an outlet for their hatreds. It has happened many times before: in Afghanistan in the 1980s and 1990s, in Bosnia, in Chechnya, in Afghanistan with the rise of the Taliban, in Iraq, and now in Syria. For ideologically committed international jihadis, the end of U.S. military operations in Afghanistan would be a pivot point rather than an endpoint.

The nature of the prisoner population at Guantanamo makes an Afghanistan-focused view of when the AUMF-conflict ends especially inapt. My understanding is that virtually all of the un-triable, un-transferable rump population at Guantanamo—the group the government delicately labels “PRB-eligible,” after the Periodic Review Boards that regularly reconsider their detentions—is made up of Arab fighters who traveled to Afghanistan from abroad. If such a detainee remains committed to global jihad, the end of U.S. military activities in Afghanistan is virtually irrelevant to whether that person has ceased to be at war with the United States.

In the final post of this series, I will consider what implications this has for how our government should think about—and what it might do to better provide for in law—the end of the conflict inaugurated by the AUMF.

Next: Ending the AUMF War