David A. Simon, special counsel to the General Counsel, Department of Defense, has posted a new article to SSRN, "Ending Perpetual War? Constitutional War Termination Powers and the Conflict Against Al Qaeda" (41 Pepperdine Law Review 685 (2014)). It's an excellent article, and I heartily recommend it to those wanting a careful, nuanced walk through the domestic constitutional issues of the end of the conflict against Al Qaeda and associated forces. Abstract:
This Article presents a framework for interpreting the constitutional war termination powers of Congress and the President and applies this framework to questions involving how and when the war against Al Qaeda and associated forces could end. Although constitutional theory and practice suggest the validity of congressional actions to initiate war, the issue of Congress’s constitutional role in ending war has received little attention in scholarly debates. Theoretically, this Article contends that terminating war without meaningful cooperation between the President and Congress generates tension with the principle of the separation of powers underpinning the U.S. constitutional system, with the Framers’ division of the treaty-making authority, and with the values they enshrine. Practically, this Article suggests that although the participation of both Congress and the President in the war termination process may make it more difficult to end a war, such cooperative political branch action ensures greater transparency and accountability in this constitutional process. This Article also examines normative questions about the role of the President and Congress in exercising their respective war termination powers, and argues that the treaty-making process represents an approach to war termination that best reflects the constitutional values of the interdependence of the political branches, while checking interbranch rivalry and preserving the constitutional and foreign relations prerogatives of Congress and the President.
The "end of the war" is a topic that provokes anticipation and longing (from progressives), skepticism and dismissiveness (from realists), and worry and trepidation (from it's-a-war-fight-it-like-one realists, but also from progressives fearing ... 'Meet the New Drone, Same as the Old Drone'). Interest in the question ramped up at the end of 2012 with a speech by then-DOD General Counsel Jeh Johnson at the Oxford Union and the President's speech at National Defense University in May 2013. Politically, it's not exactly a secret that the Obama administration in 2013 would have liked to undertake a second term path to retire or amend the AUMF, and in that process declare, not precisely "victory," but at least the ability to say that the "war" was over. "Over," that is, notwithstanding the persistence of certain groups or networks of groups as threats whose ability to threaten the United States had been severely degraded, and so meriting a different standard for using the tools of hostilities, such as drone strikes and first resort to lethal force.
It seems to me events have moved against the administration (as I discuss toward the end of this post), however. Counterterrorism-on-offense, as I've sometimes called it, remains very much on an armed conflict footing against the "groups and networks of groups" (to use the language of the NDU speech) constituting AQ/AssForces [hmm ... ed.]. And that's without answering questions (publicly, at least) of whether groups like Boko Haram are plausibly fit under the AUMF. Given the general condemnation of the group by the international community and the American public, that's not likely to matter much politically, but the general legal question is of course important. The administration still might move to retire or amend the AUMF by the end of the term, but I doubt it.
Whether it does or not, both the excitement and the trepidation raised by a (possible) move to amend or retire the AUMF arose from debate in 2013 over differences (if any, to put it baldly) in operational fact and legal doctrine that would be occasioned by a new "postwar" regime. Our very own Bobby Chesney has written several fine articles on this very subject, including one in particular titled, not coincidentally, "Postwar." Deborah Pearlstein of Opinio Juris and Cardozo Law School sponsored a fabulous roundtable on this subject last year, which brought together a wide variety of viewpoints on whether the new regime would just be the old regime in new justificatory language; Deborah's recent draft article is at SSRN. Ben Wittes and I have discussed the issue at length in our serially-published book, Speaking the Law, particularly in Chapter 3 (at SSRN) parsing the NDU speech. Legal historian Mary Dudziak published a book three years ago, War Time, which addressed the question that David Simon raises in his title, perpetual war viewed as a sort of American cultural history; Sam Moyn favorably reviewed it for Lawfare, particularly for its willingness to ask what it means to have perpetual war; I reviewed it for the Texas Law Review, agreeing with the book that perpetual war is a genuine issue for democracies but suggesting that more revelatory cultural material could be found in the literature of the Cold War; Eric Posner reviewed it with cutting realism for The New Republic, pointing out that in war, the other guy has something say about beginnings and endings, too (I freely paraphrase everyone here, with apologies).
If I were to try and summarize the concerns in a sentence, it would be the realist observation that it's not over 'til it's over versus a hard-to-pin-down, yet nonetheless genuine, anxiety that perpetual war alters the nature of a democratic republic over time, and not in good ways. Well, two sentences: Is the end of the conflict an on-off switch in terms of legal authorities to use force, will the postwar use all the same operational tools but with different justificatory language, and is there no legal room for the kinds of forcible actions that sovereigns, including the United States, have undertaken with great frequency in what those sovereigns regard as nonetheless 'times of peace' and not within an existing armed conflict, the use of force through the conduct of limited hostilities and under the rules of armed conflict, in belligerent operations short of war - and regarded as within the bounds of international law?
It is also quite true that excited talk about the end of the conflict has been dampened to a considerable extent by the rise of new "groups and networks of groups" (language from the NDU speech) that do appear to have taken up the mantle of AQ. The debate has also been overtaken by the increasingly important understanding of the medium- to long-term threat that defines, in my view, the counterterrorism of the next decade: operations against groups that have an internal insurgent jihadist wing seeking to seize territory, population, and governance within a state or part of it, but which also have an external wing or willingness to host an external wing with extra-territorial terrorist aspirations.
This will require targeted operations against the transnational terrorists, certainly. But it will also require denial-of-territory operations against jihadist insurgents, in ways that will amount to military advisors, special forces, logistics, and military aid, intelligence, and very possibly - as occurs now in Yemen and increasingly other places in Africa - US drones operating as a quasi-air arm of the government against the insurgents. It raises many questions of domestic legal authority, plainly, but it is a very different kind of discussion from trying to imagine the postwar law for what many assumed it would be: some number of continuing targeted operations by drones or special operators against particular groups, networks of groups, or particular threats, but under much tighter, more narrowly focused criteria. The need to engage in denial-of-territory (not just physically small small havens in the form of camps or safe houses, but whole provinces or territories, perhaps whole states) alters that picture considerably. In that case, what are the proper legal authorities for counterterrorism as a significant part of "CT" operations merge into a more general "geopolitics" of support, including military and CIA support, for fragile states in Africa? (Think US proxy wars in Central America in the 1980s.)
Meanwhile, there's oftentimes a certain ships-in-the-night quality to discussions of the end of the conflict. Realists, for whom it's over when it's over, often can't grasp why there's this weird sentimentality around the problem of perpetual war. The only reason they don't write it off as soft, cultural intellectualism is that the concern is right there in Madison, who indeed worried about perpetual emergencies and war and their effect on democracy. Those who sense that there's something to anxieties about a republic of perpetual war, meanwhile, think the realists are simply obtuse in refusing to grant anything to qualitative relationships of freedom and their erosion. I myself am in both camps - and I've come to think that the ships-night problem in this debate arises because the different concerns are about plural values in a democratic republic. They run to different political and moral goods - and they are different in the affective qualities they conjure. And so, though there must be tradeoffs, it isn't one over the other: we want some of each.
I've also come to think that how fully one understands the "end of the conflict" and "perpetual war" as a gnawing anxiety - very far from mere sentimentality - often reflects how old one was and whether one was old enough (well, had been born yet) for the cultural products of the Cold War in the Western democracies to have had an impact, other than as history. I'm old enough to have absorbed a great deal of the literature of political anxiety in the Cold War, and I think Jeh Johnson and others in and out of the administration who are my age are much more sensitive to it for the same reasons I am. The Arena Stage here in Washington DC has seen a rare revival this year, and a decent one, of Brecht's Mother Courage and Her Children (with Kathleen Turner in the title role). The play's satirical conceit is that peace is a disaster that throws all the camp followers, suppliers, and soldiers out of work and they rejoice when war breaks out again. Mother Courage is set in the Thirty Years War, and war has become economically "structural."
The science fiction literature of the middle Cold War, too, often framed the question of what a society would look like if perpetual war was truly perpetual. Orwell has many elements of this, of course (and Michael Radford's film in 1984 is a masterpiece of adaptation, starting with its Oceania Anthem and the 2 Minutes Hate. But perhaps the most revealing was James Blish's monumental four-novel cycle, Cities in Flight; it's rather quiet and meditative, not at all space opera sci fi. Written across the 60s and early 70s - the middle Cold War - the first book, set in the mid-2100s, was elegiac in tone, and explicitly Spenglarian, decline-of-the-West, contemplating how perpetual war had left behind mere forms of Western democracy while turning its substance into the equivalent of the Soviet police state. There are suggestions (more than suggestions) of this in Ender's Game, but there's a reason that Blish was writing for adults while Card wrote for young adults, for whom this was less of a prediction than a fable.
Okay, enough cultural angst about perpetual conflict. What about law? Most of the attention has gone to the international law side of things. David Simon thus addresses an important scholarly and analytic lacuna, inquiring into the implications in domestic constitutional law of undertaking to amend, extend, or retire the AUMF. I strongly concur with his view that ending the war needs the active cooperation and coordination of the political branches. Relying, for example, on some form of executive branch action leaves legal authorities giving permission and limitations to operations unclear. The temptation he describes is clear, however: administrations are tempted by the seeming flexibility afforded by not getting explicit language from Congress, while Congress - as ever - will have elided political responsibility.
If that seems like a win-win for the political branches, think again. It is more likely to be lose-lose, because the result is a loss of political legitimacy over the long term for whatever policy a future administration pursues. That's one policy takeaway for me from David Simon's article; he is far more legally careful and less bluntly political than what I just said, but it's a political inference I would draw from his detailed constitutional analysis of presidential and legislative roles. I said somewhere years ago, in an essay in Policy Review and a short piece in the New York Times Magazine, what lives by discretion, dies by discretion; and of course Jack Goldsmith made an extended critique of the risks of endless discretion in The Terror Presidency. Though I don't want to speak for him, I believe David Simon would agree that as a political strategy today, it's too clever by half. In any case, however, David Simon has done the best job I'm aware of in parsing the domestic constitutional law questions of the end of the conflict as they have emerged for intense and robust debate beginning in 2012 until now.