The geography of the battlefield: a framework for detention and targeting outside the 'hot' conflict zone.

• Author: Daskal, Jennifer C.
• Position: Introduction through II. A New Approach: Zones of Active Hostilities and Beyond A. Basis for the Distinction, p. 1165-1198

The U.S. conflict with al Qaeda raises a number of complicated and contested questions regarding the geographic scope of the battlefield and the related limits on the state's authority to use lethal force and to detain without charge. To date, the legal and policy discussions on this issue have resulted in a heated and intractable debate. On the one hand, the United States and its supporters argue that the conflict--and broad detention and targeting authorities--extend to wherever the alleged enemy is found, subject to a series of malleable policy constraints. On the other hand, European allies, human rights groups, and other scholars, fearing the creep of war, counter that the conflict and related authorities are geographically limited to Afghanistan and possibly northwest Pakistan. Based on this view, state action outside these areas is governed exclusively by civilian law enforcement, tempered by international human rights norms.

This Article breaks through the impasse. It offers a new and comprehensive law-of-war framework that mediates the multifaceted security, liberty, and foreign policy interests at stake. Specifically, the Article recognizes the state's need to respond to the enemy threat wherever it is located, but argues that the rules for doing so ought to distinguish between the so-called "hot battlefield" and elsewhere. It proposes a set of binding standards that would limit and legitimize the use of targeted killings and law-of-war detention outside zones of active hostilities--subjecting their use to an individualized threat assessment, a least-harmful-means test, and significant procedural safeguards. The Article concludes by describing how and why this approach should be incorporated into U.S. and international law and applied to what are likely to be increasingly common threats posed by transnational non-state actors in the future.

INTRODUCTION I. THE NATURE OF THE CONFLICT AND THE TERRITORIAL DIVIDE: THE UNITED STATES VERSUS AL QAEDA A. The United States' Approach: The Substantively and Territorially Broad View 1. Sovereignty-Based Geographical Constraints 2. Law-of-War Constraints on the Manner of Fighting-The Principles of Distinction and Proportionality 3. Additional Policy Constraints B. The Territorially Restricted View II. A NEW APPROACH: ZONES OF ACTIVE HOSTILITIES AND BEYOND A. Basis for the Distinction 1. The War Zone Versus the Peaceful Zone 2. The Lawless Zone B. Current State Practice III. THE SPECIFICS: DEFINING THE ZONES AND SETTING THE STANDARDS A. The Zone of Active Hostilities 1. Treaty and Case Law 2. Identifying the Zone 3. Geographic Scope of the Zone B. Setting the Standards 1. An Individualized Threat Finding 2. Least-Harmful-Means Test: Targeted Killings 3. Least-Harmful-Means Test: Detention 4. Procedural Requirements a. Ex Ante Procedures b. Ex Post Review IV. ADDITIONAL APPLICATIONS AND IMPLEMENTATION: TWENTY-FIRST CENTURY CONFLICTS, SELF-DEFENSE, AND INCORPORATION INTO U.S. LAW A. Diffuse Conflicts B. Self-Defense Killings C. Implementation and Security Benefit CONCLUSION INTRODUCTION

On April 1% 2011, U.S. military forces captured Ahmed Abdulkadir Warsame in the Arabian Gulf region and placed him aboard a naval ship. (1) He was interrogated for approximately two months before being transferred to New York and charged in federal civilian court. (2) The Obama Administration claimed that he initially was captured and detained pursuant to the laws of war, and that the decision to transfer him to civilian court was a policy choice based on the nation's security interests. (3) The decision led to an immediate outcry from both ends of the political spectrum. Several leaders of Congress and high-profile commentators argued that Warsame should have been moved to Guantanamo Bay or another site for long-term law-of-war detention rather than being transferred to the civilian court system for trial. (4) Others decried the reliance on the laws of war for even the short-term detention and interrogation of someone picked up far from any conventional battlefield. (5)

Six months later, the United States reportedly launched a drone into Yemen, killing Anwar al Aulaqi, the alleged operational leader of al Qaeda in the Arabian Peninsula, an ostensible co-belligerent of al Qaeda. (6) Once again, a vocal and polarized debate ensued, with critics of the alleged killing deploring the Obama Administration's use of law-of-war tactics outside the so-called "hot battlefield" of Afghanistan. (7)

The Warsame and al Aulaqi cases highlight longstanding--and still unresolved--questions about the international law rules governing the use of force and detention outside areas resembling a traditional armed conflict with boot on the ground. While there is general agreement that the United States has had the authority to target and detain enemy fighters within Afghanistan since late 2001, and in Iraq from 2003 to 2011, the notion that the United States can take custody of, and perhaps kill, any alleged member of al Qaeda or associated forces wherever he or she is found--including within the United States--continues to make many uneasy. (8)

The debate has largely devolved into an either-or dichotomy, even while security and practical considerations demand more nuanced practices. Thus, the United States, supported by a vocal group of scholars, including Professors Jack Goldsmith, Curtis Bradley, and Robert Chesney, has long asserted that it is at war with al Qaeda and associated groups. Therefore, it can legitimately detain without charge--and kill--al Qaeda members and their associates wherever they are found, subject of course to additional law-of-war, constitutional, and sovereignty constraints. (9) Conversely, European allies, supported by an equally vocal group of scholars and human rights advocates, assert that the United States is engaged in a conflict with al Qaeda only in specified regions, and that the United States' authority to employ law-of-war detention and lethal force extends only to those particular zones. (10) In all other places, al Qaeda and its associates should be subject to law enforcement measures, as governed by international human rights law and the domestic laws of the relevant states. (11)

Recent statements by United States officials suggest an attempt to mediate between these two extremes, at least for purposes of targeted killing, and as a matter of policy, not law. While continuing to assert a global conflict with al Qaeda, official statements have limited the defense of out-of-conflict zone targeting operations to high-level leaders and others who pose a "significant" threat. (12) In the words of President Obama's then-Assistant for Homeland Security and Counterterrorism, John O. Brennan, the United States does not seek to "eliminate every single member of al-Qaida in the world," but instead conducts targeted strikes to mitigate "actual[,] ongoing threat[s]." (13) That said, the United States continues to suggest that it can, as a matter of law, "take action" against anyone who is "part of" al Qaeda or associated forces--a very broad category of persons--without any explicit geographic limits. (14)

The stakes are high. If the United States were permitted to launch a drone strike against an alleged al Qaeda operative in Yemen, why not in London--so long as the United States had the United Kingdom's consent and was confident that collateral damage to nearby civilians would be minimal (thereby addressing sovereignty and proportionality concerns)? There are many reasons why such a scenario is unlikely, but the United States has yet to assert any limiting principle that would, as a matter of law, prohibit such actions. And in fact, the United States did rely on the laws of war to detain a U.S. citizen picked up in a Chicago airport for almost four years. (15)

Even if one accepts the idea that the United States now exercises its asserted authority with appropriate restraint, what is to prevent Russia, for example, from asserting that it is engaged in an armed conflict with Chechens and that it can target or detain, without charge, an alleged member of a Chechen rebel group wherever he or she is found, including possibly in the United States?

Conversely, it cannot be the case--as the extreme version of the territorially restricted view of the conflict suggests--that an enemy with whom a state is at war can merely cross a territorial boundary in order to plan or plot, free from the threat of being captured or killed. In the London example, law enforcement can and should respond effectively to the threat. (16) But there also will be instances in which the enemy escapes to an effective safe haven because the host state is unable or unwilling to respond to the threat (think Yemen and Somalia in the current conflict), capture operations are infeasible because of conditions on the ground (think parts of Yemen and Somalia again), or criminal prosecution is not possible, at least in the short run.

This Article proposes a way forward--offering a new legal framework for thinking about the geography of the conflict in a way that better mediates the multifaceted liberty, security, and foreign policy interests at stake. It argues that the jus ad bellum questions about the geographic borders of the conflict that have dominated much of the literature are the wrong questions to focus on. Rather, it focuses on jus in bello questions about the conduct of hostilities. This Article assumes that the conflict extends to wherever the enemy threat is found, but argues for more stringent rules of conduct outside zones of active hostilities. Specifically, it proposes a series of substantive and procedural rules designed to limit the use of lethal targeting and detention outside zones of active hostilities--subjecting their use to an individualized threat finding, a least-harmful-means test, and meaningful procedural safeguards. (17)

The Article does not claim...