nationalsecuritylaw forthcoming scholarship: Does It Really Matter, Legally, Whether We Persist with the Armed Conflict Model of Counterterrorism?

Forthcoming Scholarship (shameless self-promotion edition)

Postwar

Harvard National Security Journal (forthcoming 2014)

Robert Chesney (University of Texas School of Law)

http://ssrn.com/abstract=2332228

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? Critics of the status quo regarding the use of lethal force and military detention tend to assume that it matters a great deal, and that shifting to a postwar framework will result in significant practical change. Supporters of the status quo tend to share that assumption, and oppose abandoning the armed-conflict model for that reason. But both camps are mistaken about this common premise. For better or worse, shifting from the armed-conflict model to a postwar framework would have far less of a practical impact than both assume.

Consider lethal force first. The Obama administration has made clear that lethal force would remain on the table even under a postwar model, and more specifically that it would remain an option against “continuous” terrorist threats. This in itself is not surprising; the U.S. government took a similar position for decades preceding 9/11. What is surprising is the capaciousness of the continuous-threat framework, and the extent to which it turns out to be consistent with the government’s existing approach to targeting even while we remain within the armed-conflict model. The capaciousness is not new. It was built into the continuous-threat model all along, in fact, as a review of key events in the 1980s and 1990s reveals. But the flexibility of the continuous-threat model was thoroughly obscured in the pre-9/11 period thanks to certain non-legal constraints, including especially the limited technology then available to carry out airstrikes in denied areas and the paucity of actionable intelligence. A variety of technological and institutional changes over the past dozen years—particularly the emergence of armed drones and the expansion of CIA and JSOC capabilities—have sharply eroded those constraints, altering what it would mean in practice to operate under the continuous-threat model once more. This helps explain why the government, though still maintaining the relevance of the armed-conflict model as a formal matter, has in fact already returned to the continuous-threat model as a matter of policy for operations outside of Afghanistan. There was relatively little cost to doing so in terms of operational flexibility, and by the same token there would be surprisingly little loss of operational flexibility should the underlying armed-conflict framework be abandoned.

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 in Afghanistan). 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.

None of this is an argument for or against declaring an end to the conflict with al Qaeda. The debate over that issue is badly distorted, however, by the shared and mistaken assumption that status quo targeting and detention policies depend on the armed-conflict model. Moving to postwar would not generate the sea change that advocates seek and opponents fear.

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