an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
In a speech delivered last week at the Oxford Union, Defense Department General Counsel Jeh Johnson broached the subject of a possible end to the armed conflict with al Qaeda (the conflict formerly known as the "Global War on Terror"). A determination that the war is over would have significant consequences for the detention, interrogation, and targeting of terrorism suspects. (See Mary Dudziak's post here discussing some implications for targeted killings). While U.S. officials have never denied that the conflict against al Qaeda might one day end, Johnson is the first to describe in such detail what the end might look like.
Johnson began by covering familiar ground. He reaffirmed, for example, that the U.S remains engaged in an armed conflict with al Qaeda, that the conflict lacks territorial boundaries, and that the U.S. can treat al Qaeda under traditional law-of-war principles even though al Qaeda is an unconventional enemy. Johnson, in my view, overstates the degree to which the Supreme Court has endorsed the notion of a global-wide armed conflict and excludes important factors in assessing whether, and where, an armed conflict against al Qaeda still exists (There is, for example, no discussion of the intensity or duration of hostilities). But it's worth focusing on what's new in the speech. Here's where things get interesting:
"In the current conflict with al Qaeda, I can offer no prediction about when this conflict will end, or whether we are, as Winston Churchill described it, near the 'beginning of the end.'
I do believe that on the present course, there will come a tipping point--a point at which so many of the leaders and operatives of al Qaeda and its affiliates have been killed or captured, and the group is no longer able to attempt or launch a strategic attack against the United States, such that al Qaeda as we know it, the organization that our Congress authorized the military to pursue in 2001 [under the Authorization for Use of Military Force (AUMF)], has been effectively destroyed.
At that point, we must be able to say to ourselves that our efforts should no longer be considered an 'armed conflict' against al Qaeda and its associated forces; rather, a counter-terrorism effort against individuals who are the scattered remnants of al Qaeda, or are parts of groups unaffiliated with al Qaeda, for which the law enforcement and intelligence resources of our government are principally responsible, in cooperation with the international community--with our military assets available in reserve to address continuing and imminent terrorist threats.
At that point we will also need to face the question of what to do with any members of al Qaeda who still remain in U.S. military detention without a criminal conviction and sentence. In general, the military's authority to detain ends with the 'cessation of active hostilities.' For this particular conflict, all I can say today is that we should look to conventional legal principles to supply the answer, and that both our Nations faced similar challenging questions after the cessation of hostilities in World War II, and our governments delayed the release of some Nazi German prisoners of war." (emphasis all in original text of the speech)
Much can be said in unpacking Johnson's remarks, but I'll limit myself here to a few points about detention. Taken at face value, Johnson suggests that once the conflict with al Qaeda ends (and he includes elsewhere in his speech the familiar caveats about how difficult it is to assess the end in this non-traditional armed conflict), the U.S. must revert to the default, peacetime paradigm of treating terrorism suspects exclusively through a law enforcement approach, which dictates that suspects who are not charged be released. Reversion to peacetime rules would thus obligate the U.S. to release the detainees it continues to hold without charge at Guantanamo as well as those it is still detaining at Bagram (The U.S. has already agreed to return all Afghan detainees to the Afghan government). If the armed conflict with al Qaeda were to end, it would also preclude the future indefinite military detention of suspected terrorists under the AUMF.
An end of the conflict would thus place increased pressure on the U.S. to try those law-of-war detainees it does not want to release. As long as the current restrictions on bringing Guantanamo detainees to the United States remain in place (thereby preventing Article III court prosecutions), this pressure will fall on military commissions. Military commissions allow for the continued incarceration of detainees convicted of war crimes even after the war has ended, as the length of their confinement is determined by the sentence imposed not the duration of the conflict. One complication, however, is that military commission jurisdiction appears to be shrinking. A conservative D.C. Circuit panel recently held in Hamdan II that material support for terrorism is not a valid charge in a military commission against any existing Guantanamo detainee. (Another D.C. Circuit panel is presently considering whether conspiracy charges in military commissions are likewise off the table). The absence of material support and conspiracy charges--neither of which requires an attempted or completed act of terrorism--would significantly restrict the pool of Guantanamo detainees eligible for military commission prosecution.
This then leads to another question: Will the United States actually free detainees whom the President has previously described as too difficult to try and too dangerous to release once the war is over? One likely possibility is that the United States will engage in post-conflict detention for some period of time (Note Johnson's citation of the "delayed release" of German prisoners of war after World War II). Further, judging from past experience at Guantanamo--where individuals whom the United States has administratively cleared for transfer have languished in detention for years--such post-conflict detention could last for quite a while. Another possibility is that the United States might adopt a system of administrative detention, which could permit it to hold allegedly dangerous terrorism suspects in long-term confinement in the absence of an ongoing armed conflict. One way for the U.S. to avoid confronting these choices is to maintain that the conflict with al Qaeda--and thus the power to detain under the law of war--continues.
Perhaps, the Obama administration has begun planning for an end-game, and Johnson's remarks are intended to start paving the way for the shift in detention policy that must accompany war's end. Or, perhaps the administration--with Guantanamo well into its second decade and the U.S. withdrawing troops from Afghanistan--is buying more time through a strategic acknowledgment that at some point, this war, and thus these wartime detentions, must end. It is simply too early to tell. But either way, Johnson's remarks underscore the need to shift the discourse around what could soon become America's longest war.