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 msl46 at law.georgetown.edu
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
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.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
The (Still) Unaddressed Threshold Question: What is the “War on Terror” Anyway?
More than nine years after 9/11, central questions underpinning America’s “war on terror” remain unresolved: who is the enemy, what connection must a person have to it, and, more fundamentally, what is the legitimate scope of the conflict itself. Although these issues have arisen in habeas corpus challenges to military detentions at Guantánamo and elsewhere, that litigation has yet to provide definitive answers. With respect to the president’s legal authority to hold “enemy combatants,” the Supreme Court has held only that the president may, under the 2001 Authorization for Use of Military Force, detain Taliban and al Qaeda soldiers who engage in combat against U.S. or allied armed forces in Afghanistan—a limited ruling that does not begin to address the expansive assertions of global-wide war powers by the former and current administrations.
A recent suit, Al-Aulaqi v. Obama, takes on another facet of the “war on terror”—the controversial practice of targeted killing. The suit, brought by the ACLU and Center for Constitutional Rights, challenges the placement of a U.S. citizen, Anwar Al-Aulaqi, on a “kill list,” thereby subjecting him to the use of lethal force without charge, trial, or conviction. The suit’s core argument—that the extrajudicial killing of al-Aulaqi violates the Constitution—rests on the proposition that al-Aulaqi, an alleged al Qaeda leader in Yemen, is outside the legally recognized parameters of armed conflict. “The United States,” plaintiff argues, is “not at war with Yemen, or within it.” As such, dehors armed conflict, ordinary constitutional norms apply.
The administration defends only in cursory fashion its targeting killing policy and theory of armed conflict underlying it. Here, moreover, the administration misstates the law: contrary to its assertion, the Supreme Court in Hamdan v. Rumsfeld did not determine that there was a non-international armed conflict with al Qaeda beyond the borders of Afghanistan.
The government’s argument for dismissal focuses instead on why the district court should duck the critical question regarding the scope of the armed conflict: lack of standing (the suit was filed on Anwar al-Aulaqi’s behalf by his father); state secrets (because litigating whether the U.S. plans to kill one of its citizens would require disclosure of military and intelligence activities directed at combating terrorism); and the political question doctrine (because judges are unfit to decide whether and in what circumstances the United States’ armed conflict with al Qaeda might extend beyond the borders of Afghanistan and Iraq).
The courts may ultimately decline to address the merits in al-Aulaqi. A resolution on non-justiciability grounds, however, would only help perpetuate the legal uncertainty over targeted killing, much as the habeas litigation has failed to resolve basic questions over the president’s military detention powers. In the end, one legacy of the “war on terrorism” may be the judiciary’s failure to address the question at the heart of all the litigation this “war” has spawned.