Beyond the Battlefield, Beyond Al Qaeda: The Destabilizing Legal Architecture of Counterterrorism
By the end of the first post-9/11 decade, the legal architecture associated with the U.S. government’s use of military detention and lethal force in the counterterrorism setting had come to seem relatively stable, supported by a remarkable degree of cross-branch and cross-party consensus (manifested by legislation, judicial decisions, and consistency of policy across two very different presidential administrations). That stability is certain to collapse during the second post-9/11 decade, however, thanks to the rapid erosion of two factors that have played a critical role in generating the recent appearance of consensus: the existence of an undisputed armed conflict in Afghanistan, as to which the law of armed conflict clearly applies, and the existence of a relatively identifiable enemy in the form of the original al Qaeda organization. Several long-term trends contribute to the erosion of these stabilizing factors. Most obviously, the overt phase of the war in Afghanistan is ending. At the same time, the U.S. government for a host of reasons places ever more emphasis on what we might call the “shadow war” model (i.e., the use of low-visibility or even deniable means to capture, disrupt, or kill terrorism-related targets in an array of locations around the world). The original al Qaeda organization, meanwhile, is undergoing an extraordinary process of simultaneous decimation, diffusion, and fragmentation; one upshot of this transformation has been the proliferation of loosely related regional groups that have varying degrees of connection to the remaining core al Qaeda leadership. These shifts in the strategic posture of both the United States and al Qaeda profoundly disrupt the stability of the current legal architecture on which military detention and lethal force rest. Specifically, these developments make it far more difficult (though not impossible) to establish the relevance of the law of armed conflict to U.S. counterterrorism activities, and they raise exceedingly difficult questions regarding whom these activities lawfully may be directed against. Critically, they also all but guarantee that there will be a new wave of judicial intervention to consider those very questions. Bearing that in mind, I conclude this Article by outlining steps that could be taken now to better align the legal architecture with the trends described above.