Balkinization  

Friday, November 09, 2012

"A Decade of War is Ending"

Deborah Pearlstein

Cross-posted at Opinio Juris

Of the many memorable lines in President Obama’s eloquent victory speech on Tuesday, the Chicago crowd reserved some of its greatest applause not for the line trumpeting the economy’s ongoing recovery, but for the news that “a decade of war” was coming to an end.  

Tuesday’s speech was not the first time the President has made such a statement.  But he has taken care to avoid saying which war, exactly, he meant was at an end.  Certainly he includes the war in Iraq as among the endings.  Likewise nearing an end from the President’s perspective is the war in Afghanistan, with U.S. troops set to leave by 2014. 

What about the worldwide “war” against Al Qaeda and associated forces?  The war two Presidents, Congress and the courts have all now found in some sense to exist? While U.S. operations in, for example, Yemen, continue apace, and the brand name “Al Qaeda” remains in active use, public reporting suggests there is less and less left of a command structure behind the Al Qaeda organization actually responsible for attacking the United States in 2001.  Whether that war counts among the endings the President had in mind is less clear.

We may all hope to learn more about what the President meant by war’s end in the coming weeks.  But he was certainly right to raise the question of how the country moves “beyond this time of war.”  As Administration officials have suggested in recent years, in, for example, contemplating Al Qaeda’s “strategic defeat,” it is possible to envision an ending of one kind or another to all of these conflicts.  Now is the time to think carefully about the vast law and policy implications of what it will mean when the United States is no longer at war. 

Take one small sliver of the subject: the myriad federal statutes authorizing the government to exercise certain powers only for so long as hostilities continue. The existence of war, variously defined, is the sine qua non condition for the lawful exercise of a wide range of statutory authorities that have supported the past decade of U.S. counterterrorism operations.  Military commissions, for example, may substitute for civilian trials to prosecute only those acts “incident to the conduct of war,” for events occurring “within the period of the war.”  Under another law, civilians may be subject to the U.S. military justice system if they are “serving with or accompanying an armed force in the field… [i]n time of declared war or a contingency operation.”  Likewise, private security contractors implicated in misconduct are immune from tort suits for a wide swath of activities, only if performed “during time of war.” 

Perhaps most famous among such authorities, the 2001 Authorization for Use of Military Force empowers the President to detain individuals “engaged in an armed conflict against the United States,” only, as the Supreme Court held, “for the duration of these hostilities.”  The existence of this “armed conflict” is likewise one of the central legal justifications for ongoing targeted killing operations by the United States abroad.

Whatever the answers to the longstanding questions about the scope of these and other war-triggered authorities, about whether and for how long they should continue to exist, it should be possible to agree on at least one thing as the conversation at war’s end begins: it would be better to make decisions about which of these laws are needed after we have a developed a game plan for U.S. counterterrorism strategy for the long-term.  A strategy not driven by the demands of crisis-driven fear, as it was in the months after September 11, or by ex-post mistake mitigation, the task that confronted the President in his first term, and in important ways burdens him still. 

What we need to help guide these decisions is a strategy that sees the challenge of terrorism in all its enduring complexity.  A strategy that flows from the vision we glimpsed in passing on Tuesday, that of “a country that moves with confidence beyond this time of war, to shape a peace that is built on the promise of freedom and dignity for every human being.” A strategy that begins with the understanding that the task is to develop rules that will be a part of our national life and character not for a limited or exceptional period of “war” time, but indefinitely.  And that therefore recognizes that the questions before us are not about what we are willing and able to do right now as a nation, but about what kind of country and what kind of world we want ours to be.
 
The President is right.  These particular wars will come to an end.  The problem of terrorism never will.

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