"Does it really matter, from a legal perspective, whether the U.S. government continues to maintain that it is in an armed conflict with al Qaeda? When it comes to the use of lethal force and military detention, not nearly so much as both supporters and critics of the status quo commonly assume."
Those are the opening lines of the abstract for my new essay Postwar (the rest of the abstract appears below). Postwar develops an argument I've flagged briefly in prior posts (see here and here), but have not previously explained at length.
Eventually I'll post the full essay, of course, and will welcome criticisms and responses. For now, however, I'd like to begin the process of finding a home for it. If you happen to be an editor, from a law review or otherwise, with an interest in this question, I'd be happy to hear from you and can then pass along the full manuscript (about 10,000 words total) for your consideration. At any rate, here's the rest of the abstract:
Consider lethal force first. The government has made clear that some form of lethal force would remain on the table even under a postwar model. Specifically, force would remain an option against “continuous” terrorist threats, as a matter of national self-defense, even absent a claim of armed conflict. Upon close examination, this standard proves not to be different in practice from the scope of targeting authority that the government currently asserts outside the context of Afghanistan, and would not likely result in a complete or substantial shutdown of the drone programs that so inflame critics currently.
Notably, this is not a novel standard. Rather, it is one that the government has embraced since at least the early 1980s. Its potential scope was not apparent in the pre-9/11 period, however, thanks to an array of non-legal constraints that limited its use (including the limited technology then available to carry out airstrikes in denied areas, the frequent lack of actionable intelligence, and restrictive political and diplomatic environments). These constraints are much weaker today, thanks especially to the emergence, maturation, and proliferation of drone technology. As a result of that shift, it is possible for the government to exploit the capaciousness of the continuous-threat model to a much greater extent than in the past. This change is not widely appreciated because it unfolded at a time when the government already embraced the armed-conflict model and thus had no need to invoke the continuous-threat justification. Yet the shift occurred nonetheless, and its implications will become apparent whenever the armed-conflict model is set aside (indeed, those implications already are apparent insofar as the Obama administration as a matter of policy has adopted the parameters of the continuous-threat model even while still maintaining the relevance of the armed-conflict framework).
The situation with military detention is different, but much less so than many assume. True, the demise of the armed-conflict model would matter for the dwindling legacy population at Guantanamo (and, if any remain by that time, for a handful of legacy detainees in Afghanistan). It will not matter nearly so much for potential future detainees, however, for the simple reason that the United States has long-since gotten almost entirely out of the business of taking on new detainees. For a variety of reasons (most of which would remain true under an administration of a different party) long-term military detention has become unattractive compared to alternatives such as prosecution (including prosecution in combination with short-term detention), the use of lethal force, and encouraging detention in the hands of other countries. In light of this larger dynamic, the theoretical loss of legal authority to detain in the postwar period will have comparatively little real consequence.
None of this is an argument for or against declaring an end to the conflict with al Qaeda. Some observers may conclude that the armed-conflict model should be preserved in order to ensure applicability of IHL. Others may conclude that it is not only important to bring about an end to the armed-conflict model but also to seek legislation restoring the limitations that prevailed as a matter of practical constraints (even if not legal constraint) before the technological and institutional changes seen in recent years made the continuous-threat model so expansive. Still others may embrace that broad model as it now stands. There are many possibilities. The point, though, is that the ongoing national debate about the role of lethal force and military detention in counterterrorism policy will be far better off if we develop a better appreciation for (i) where thing stand today as a matter of policy even while we remain nominally within the legal paradigm of armed conflict and (ii) what the legal architecture will entail if and when we move on to a postwar paradigm that carries with it the technological and other changes that have occurred over the past dozen years.
- Terrorism Trials & Investigations,
- Transfers, Releases & Resettlements,
- Detention: Proxy Detention,
- Detention: Non-Guantanamo Habeas Litigation,
- Cyber & Technology,
- Targeted Killing,
- International Law: LOAC,
- Executive Power,
- Detention & Guantanamo,
- International Law: LOAC: Detention,
- International Law,
- Relationship between LOAC and IHRL,
- Detention: Operations in Afghanistan,
- International Law: LOAC: Field of Application,
- Detention: Law of,