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

• Author: Chesney, Robert M.
• Position: III. Disruptive Strategic Change A. Strategic Change and the Evolution of al Qaeda 2. The Legal Consequences of Proliferation and Fragmentation through Conclusion, with footnotes, p. 198-224

2. The Legal Consequences of Proliferation and Fragmentation

   The proliferation and fragmentation trends described above create a growing disconnect between the conception of the enemy embedded in the existing domestic legal architecture and the facts on the ground. The 2001 AUMF, though framed in general terms, was relatively straightforward in terms of identifying an enemy. It encompassed al Qaeda in its reference to the organization responsible for the 9/11 attacks, and it encompassed the Afghan Taliban in its reference to those who might harbor the organization responsible for the 9/11 attacks. It said no more and no less and thus set the stage for a two-party conception of the enemy.

   Bush himself challenged that conception early on in a speech to Congress, proclaiming that the War on Terror would not be limited to al Qaeda but would extend to all terrorist organizations of global reach threatening America. (158) Such a capacious understanding of the enemy was beyond what Congress had provided in the AUMF, and thus the speech raised the question of whether military force against additional groups might instead be justified domestically (i.e., in terms of the separation of powers) on grounds of inherent presidential power to use force under Article II of the Constitution (either as a matter of national self-defense or on some broader theory of executive discretion to use force to further the national interest). (159) But, though subsequent rhetoric often referred to a "Global War on Terror" rather than a conflict with al Qaeda as such, the matter eventually came to seem rather academic, as it did not appear that the United States was actually detaining or targeting persons outside the al Qaeda-Afghan Taliban framework. (160) The emerging detention case law powerfully reinforces this perception as the vast bulk of cases involved persons that the government said were members of al Qaeda or the Afghan Taliban. (161) The fact that the Obama Administration expressly invoked authority only under the AUMF further reinforced the apparent primacy of the two-party conception. (162)

   All of which would be fine from the domestic separation-of-powers perspective, except that in reaction to the proliferation and fragmentation trends described above, the United States eventually did begin using force against members of other groups after all--or at least it began using force in situations which could not be reconciled with the two-party conception without encountering difficult factual questions about the precise nature of the link between a given group and al Qaeda or the Afghan Taliban. This occurred on a widespread and sustained scale in Afghanistan itself and in Pakistan; (163) it occurred on a narrower and more episodic scale in Yemen in relation to AQAP; (164) and it may or may not have occurred from time to time in Somalia, depending on whether one thinks that episodic uses of force there have targeted al-Shabaab as such or, instead, individuals linked to the core al Qaeda organization. (165)

   The executive branch has long argued that any such extensions remain justified from a domestic law perspective on the theory that the AUMF implicitly includes authority to use force against any entities that emerge as cobelligerents of al Qaeda or the Afghan Taliban--a status the executive branch refers to as becoming an "associated force." (166) This approach began in the Bush Administration, which built the associated forces model into its description of the boundaries of its detention authority in the course of the Guantanamo habeas litigation. (167) The Obama Administration has continued this approach, both in litigation and in its National Strategy for Counterterrorism. (168)

   There are two problems with the associated-forces solution. First, some critics deny that the cobelligerency concept has application in this setting, reasoning that cobelligerency is a creature of international law applicable solely in the context of international armed conflict--a circumstance not present here. (169) Whatever the merits of that criticism in the abstract, however, it became irrelevant to the domestic law separation-of-powers dispute (i.e., the fight as to whether Congress had implicitly authorized the use of force against "associated forces" or if the president may have such power through Article II in the alternative) when Congress in 2011 enacted the NDAA FY12, which included language expressly embracing the executive branch's detention-authority definition--encompassing not just al Qaeda and the Taliban but also "associated forces." (170) It is thus no longer necessary to argue that such a concept should be read into the AUMF via cobelligerency; Congress has expressly embraced the general idea.

   But what exactly counts as an associated force? This is the second problem, and not only does it remain untouched by the NDAA FY12 but it is also a problem that is growing increasingly serious as the trends described above unfold. Simply put, it is not clear what criteria apply to identify a group as an associated force.

   International law is little help, even if we were to accept the relevance of the cobelligerency concept, given the distance between the organizations and networks currently at issue and the state-centric situations that gave rise to that concept in the past. Congress missed the chance to address this issue in the NDAA FY12, choosing to simply codify the "associated forces" concept without defining it. The habeas-derived case law from the past decade also has little to offer. As noted above, those cases almost invariably involve persons linked either to the Afghan Taliban or to the core al Qaeda organization (or more specifically, to the training camps and recruiting pipelines that al Qaeda operated pre-9/11). Such fact patterns spare the courts any need to grapple with the nuances that situations like that of Warsame present (i.e., those that are replete with uncertainty regarding various groups and their ties to al Qaeda).

   Here we might add, too, a note on the impact of the sheer passage of time. In some quarters, a tipping point has arrived. Nothing captures this sense better--or more relevantly--than the blunt denunciation issued by Christopher Heyns--designated by a United Nations body to be a "special rapporteur" monitoring the practice of "extrajudicial killing"--at an event sponsored by the American Civil Liberties Union ("ACLU") in the summer of 2012. According to the account provided by the Guardian,

   Heyns ridiculed the US suggestion that targeted UAV strikes on al-Qaida or allied groups were a legitimate response to the 9/11 attacks. "It's difficult to see how any killings carried out in 2012 can be justified as in response to [events] in 2001," he said. "Some states seem to want to invent new laws to justify new practices." (171) In his recent depiction of the Obama Administration's counterterrorism policies, journalist Daniel Klaidman offers the following account of the president's appreciation for the growing legal instability. The president, he observed, was

   a lawyer, and he understood that in the shadow wars, far from conventional battlefields, the United States was operating further out on the margins of the law. Ten years after 9/11, the military was taking the fight to terrorist groups that didn't exist when Congress granted George Bush authority to go to war against al-Qaeda and the Taliban. Complicated questions about which groups and individuals were covered under the [AUMF] were left to the lawyers. Their finely grained distinctions and hair-splitting legal arguments could mean the difference between who would be killed and who would be spared. (172) That passage perfectly captures the legal impact of al Qaeda's evolution. It also turns our attention to a second disruptive strategic shift: that on the part of the U.S. government as it moves away from overt combat deployments and toward discrete, low-visibility uses of force.

   2. Strategic Change and the U.S. Government's Shift to Shadow War

   Legal destabilization is not just a matter of al Qaeda's evolution and consequent uncertainty as to the identity of the enemy. It also flows from a long-term shift in the U.S. government's approach to the disposition of its own forces, a shift in strategy that Klaidman writes is "firmly in line with Obama's approach to the war on terror: surgical and discrete." (173) Specifically, the United States is drawing down in Afghanistan while simultaneously expanding its involvement in what might best be described as "shadow war." The end result will be something altogether new in our experience: a formally secret yet partially transparent set of institutions and programs engaged in the use of lethal force and other military-style counterterrorism measures on a systematic basis (including both direct action by low-visibility U.S. forces and support for operations conducted by other governments) yet wholly delinked from any contemporaneous circumstance of undisputed armed conflict. In that setting, the persistent disagreement as to when and where LOAC governs simply cannot be ignored.

1. Step One: Drawdown in Afghanistan

   The United States has maintained a large-scale combat presence in Afghanistan for more than a decade, and as recently as 2009 the main focus of debate in Washington concerned the size of the troop surge that circumstances there warranted. (174) But things are different today. No one speaks of outright victory over the Afghan Taliban and other insurgents, let alone generational commitments to achieve that end. The White House has reportedly embraced considerably more modest goals, embodied by the slogan "Afghan Good Enough." (175) Drawdown is no longer an abstract possibility but a policy reality with a specific timeline. The transition of security responsibility to Afghan forces is already well on its way, with the goal of completion in 2014. (176) In sum, large-scale U.S. involvement in the war...