Beyond the battlefield, beyond al Qaeda: the destabilizing legal architecture of counterterrorism.

• Author: Chesney, Robert M.
• Position: Introduction through III. Disruptive Strategic Change A. Strategic Change and the Evolution of al Qaeda 1. Proliferation and Fragmentation, p. 163- 198

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.

TABLE OF CONTENTS INTRODUCTION I. THE FIRST POST-9/11 DECADE: FROM INSTABILITY TO INSTITUTIONAL SETTLEMENT A. Legal Instability and the Post-9/11 Evolution of Counterterrorism Policy B. The Appearance of Institutional Settlement II. FOUNDATIONS OF THE APPARENT INSTITUTIONAL SETTLEMENT (AND WHAT THEY OBSCURE) A. What Are the Boundary Questions? 1. In What Circumstances Does LOAC Govern? 2. Who Precisely Is the Enemy? B. Stabilizing Factors That Obscure the Boundary Questions 1. Undisputed Armed Conflict in Afghanistan 2. Relative Clarity as to the Identity of the Enemy III. DISRUPTIVE STRATEGIC CHANGE A. Strategic Change and the Evolution of al Qaeda 1. Proliferation and Fragmentation 2. The Legal Consequences of Proliferation and Fragmentation B. Strategic Change and the U.S. Government's Shift to Shadow War 1. Step One: Drawdown in Afghanistan 2. Step Two: Increased Emphasis on Shadow War 3. The Legal Consequences of the Shift to Shadow War IV. SHIFTING THE LEGAL FRAMEWORK ONTO FIRMER FOOTING A. The Coming Wave of Judicial Intervention 1. Military Detention 2. Lethal Force B. Options for Refining the Legal Architecture 1. Clarifying the Enemy 2. Sidestepping the LOAC Dilemma CONCLUSION INTRODUCTION

The Gulf of Aden lies like a funnel between the Indian Ocean and the Red Sea, bracketed by Yemen on its north shore and Somalia to the south. On a typical day, it is flush with massive tankers and cargo vessels headed to and from the Suez Canal. But the vessel that had the attention of U.S. government officials on April 19, 2011, was a much smaller affair, a mere fisherman's skiff attempting to slip quietly across the Gulf from Yemen to Somalia. (1)

Onboard was a Somali man named Ahmed Abdulkadir Warsame. At the time, that name meant nothing to most Americans. But, for a small circle of U.S. government and military officials with access to the relevant intelligence, Warsame was a decidedly threatening figure who personified troubling changes sweeping through the counterterrorism landscape.

Warsame, you see, was not a member of al Qaeda, nor had he ever been anywhere near the battlefields of Afghanistan. He was, instead, a member of a Somali insurgent group known as Harakat al-Shabaab al-Mujahideen (the "Movement of the Mujahideen Youth"), or simply "al-Shabaab." (2) Of course, so too were hundreds if not thousands of other young Somali men. What made Warsame different was that he had just spent time in Yemen as a guest of al Qaeda in the Arabian Peninsula ("AQAP"), receiving advanced training in explosives and working to build ties between the two groups.

Warsame's activities had set off alarm bells in Washington. AQAP, though very much engaged in a localized effort to seize power in Yemen, had repeatedly demonstrated its interest in carrying out attacks on American targets, consistent with the larger strategic priorities set by the senior leadership of the original al Qaeda network. (3) Indeed, U.S. officials by early 2011 had come to see AQAP as the organization most likely to carry out a terrorist attack in America. (4) Al-Shabaab, in contrast, had thus far confined its operations to the East Africa region, and despite much talk of it becoming an al Qaeda "franchise," its leadership appeared divided on the wisdom of that step. More significantly, perhaps, al Qaeda's senior leadership was also divided on the al-Shabaab question. (5) Osama bin Laden in particular appears to have resisted formal ties, despite the arguments of other al Qaeda leaders. (6) While al Qaeda may not have been prepared at that time to establish a formal relationship with al-Shabaab, it could nonetheless encourage al-Shabaab to expand its efforts beyond Somalia and emulate the AQAP model by adopting a dual focus on local insurgency and periodic external operations against American and other Western targets. Toward that end, therefore, al Qaeda appears to have asked AQAP's leadership to do what it could to reorient al-Shabaab.

Warsame was likely the first fruit of that effort. His capture was also a case study in the difficulty of describing the metes and bounds of the U.S. government's authority to use military detention and lethal force in the name of counterterrorism. Could Warsame lawfully be killed outright, should actionable intelligence regarding his location arise? Could he at least be detained militarily without criminal charge, assuming capture was feasible? If the answer to either question was yes, did it follow that the same would have been true for all members of al-Shabaab? What about other groups or individuals that might have been in communication with al Qaeda leaders or have been sympathetic to al Qaeda's goals? With the original al Qaeda network seemingly on the decline, and the threat posed by emergent regional groups such as AQAP and perhaps now al-Shabaab waxing, these were increasingly pressing questions.

Against this backdrop, the Obama Administration adopted a complex approach to Warsame's case. The administration placed Warsame on a "kill/ capture" list maintained by Joint Special Operations Command ("JSOC"). JSOC operators watched closely as Warsame proceeded across the Gulf on April 19, 2011 and the decision was made to attempt a capture. (7) The operation came off in textbook fashion; they seized the vessel without a shot fired. (8) For the next two months Warsame languished in the brig of the USS Boxer, (9) undergoing interrogation in military custody. The stage was thus set for what could become a significant test case for the scope of the government's detention authority. But before litigation could arise--indeed, before the public learned of Warsame's capture--the administration switched gears. In a rather bold move, it transferred Warsame to civilian custody, flying him to New York City to face criminal charges.

While shifting Warsame into the civilian criminal justice system may have rendered the question of detention authority academic in his case, (10) the underlying issues remain. Indeed, situations comparable to Warsame's are likely to arise with increasing frequency in light of certain strategic trends that I describe below. If they do, a future administration may not be inclined to follow the Warsame model, either out of a commitment to making greater use of the military detention option or out of concern for the domestic political backlash that might result in the event of another transfer from military to civilian custody. (11) Congress, for its part, might eventually force the issue by forbidding such transfers by statute (just as it has already forbidden such transfers in the case of detainees held at Guantanamo Bay). (12)

The ultimate lesson of the Warsame scenario is not that hard questions about the authority to use military detention or lethal force in such settings can be avoided but rather that they deserve sustained public attention. In the pages that follow, I explain that the second post-9/11 decade will be increasingly characterized by a kind of "shadow war," taking place on an episodic basis in locations far removed from zones of conventional combat operations and involving opponents not readily described as members of al Qaeda as such. The legal architecture that developed to a point of seeming stability over the past decade is not well adapted to this environment, and as time goes by--as new Warsames emerge--the gaps will become increasingly apparent and problematic.

Part I fleshes out my baseline claim that the status quo legal architecture reached a point of apparent stability by the close of the first post-9/11 decade...