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Would Abandoning the War Model of Counterterrorism Make a Difference from a Legal Perspective?


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?  What if the status quo policies regarding detention and lethal force would be little changed by a formal abandonment of the war model?  These are complex questions, especially because the war model is not just a legal architecture but also a framing device in domestic politics and in international relations—and there is little doubt that announcing an end to the war model would have an impact in terms of politics and diplomacy.  But let’s focus on the legal element here.  Is it really the case that moving to a postwar world would result in sharp constraints, or even elimination of, current detention and lethal force policies?  The answer may surprise you, given the attention afforded by lawyers to the question of whether that model will continue.

Consider lethal force first. As indicated in an important speech from the Defense Department’s General Counsel in late 2012, military options would remain an option under a postwar model, for use when needed against “continuing and imminent terrorist threats.”   This in itself is not at all surprising; the U.S. government took a similar position prior to 9/11, after all, as illustrated most vividly by the cruise missile strikes conducted by the Clinton administration against al Qaeda targets in 1998.  What is surprising is just how capacious this continuing-and-imminent threat model actually can be.  Its breadth was not apparent in the 1990s thanks to the limited technology available at the time for conducting targeted, stand-off strikes against individuals or small groups, and the lack of actionable intelligence needed to inform such strikes.  The emergence of armed drones capable of loitering over targets and striking not just with great accuracy but with temporal immediacy, combined with the creation of an extraordinary intelligence apparatus devoted toward the manhunting aspects of counterterrorism, has long since shattered those practical constraints.  The fact that this development occurred under cover of the war model ensured that its implications for the continuing-and-imminent threat model would not be apparent immediately.  But those implications were considerable nonetheless.  

What’s more, the convergence of current targeting policies and the pre-9/11 model is a two-way street.  Though the government continues to maintain the relevance of the war model to this day, it has made clear that it now embraces—as a matter of policy discretion—constraints on the use of lethal force outside the Afghan combat zone that replicate the elements of the continuing-and-imminent threat model (of course, even Afghanistan may soon be categorized as something other than a zone of combat, given the accelerating momentum toward the withdrawal of most if not all American combat forces).  Not that this means that the constraints are all that restrictive; one must bear in mind that the continuing-and-imminent model does not require the sort of literal-immediacy one might associate with police uses of force during, say, a hostage crisis.  The model instead treats the imminence element as satisfied on an ongoing basis when a fleeting window of opportunity emerges to carry out an attack against a group or individual that already has demonstrated the capacity and will to kill Americans, at least where a capture mission is not feasible in the circumstances.  This helps explain why the government, though still maintaining the relevance of the armed-conflict model as a formal matter, already was willing to return to the continuing-and-imminent threat model as a matter of policy: There just isn’t much cost to doing so in terms of lost operational flexibility.  The same will be true postwar, at least insofar as the legal architecture is concerned. 

The situation with respect to military detention is different, but only marginally so. The demise of the armed-conflict model will certainly matter for the dwindling legacy population at Guantanamo (and, perhaps, for a handful of legacy detainees who might yet remain in Afghanistan by that time). It will not matter nearly so much for potential future detainees, however, for the simple reason that the United States long-ago got out of the business of taking on new detainees outside of Afghanistan. There are several reasons for the demise of long-term military detention as a policy option, including the fact that it has become unattractive compared to alternatives such as prosecution, the use of lethal force, and encouraging detention in the hands of other countries. The theoretical loss of legal authority to detain in the postwar period will have comparatively little real consequence in light of this larger dynamic. 

I have far more to say on all of these points in an essay titled Postwar that is forthcoming in the Harvard National Security Journal.  The important point for now, however, is as follows.  None of this is an argument for or against declaring an end to the conflict with al Qaeda.  The debate over the future course of U.S. counterterrorism policy is badly distorted, however, by the shared and mistaken assumption that status quo targeting and detention policies depend as a legal matter on the armed-conflict model.  This assumption fails to account for the impact of policy and practical changes over the past six years, and it underestimates the range of authority that still likely would be asserted even in a postwar legal framework. 

Robert Chesney is a law professor at the University of Texas-Austin, where he also serves as the director-designate of the Robert S. Strauss Center for International Security and Law.  Follow him on Twitter (@bobbychesney) and at Lawfare.