Are We Nearing an End of Hostilities?
When the Secretary of Defense declares, as Leon Panetta recently did, that the strategic defeat of Al Qaeda is "within reach," it is probably time to start thinking about the termination of hostilities for purposes of AUMF detention authority. The Washington Post reports that:
Defense Secretary Leon E.
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When the Secretary of Defense declares, as Leon Panetta recently did, that the strategic defeat of Al Qaeda is "within reach," it is probably time to start thinking about the termination of hostilities for purposes of AUMF detention authority. The Washington Post reports that:
Defense Secretary Leon E. Panetta, who arrived in Kabul on Saturday, said the United States was “within reach of strategically defeating Al Qaeda” and that the American focus had narrowed to capturing or killing 10 to 20 crucial leaders of the terrorist group in Pakistan, Somalia and Yemen. Mr. Panetta, who took over as defense secretary from Robert M. Gates on July 1, made his comments aboard his plane before arriving on an unannounced trip to Afghanistan.They were Mr. Panetta’s first public remarks in his new post and among the most positive from a senior American national security official about the decade-old war against the terrorist organization, founded by Osama bin Laden, that was responsible for the terrorist attacks of Sept. 11, 2001. Mr. Panetta, who as director of the Central Intelligence Agency ran the American commando raid that killed Bin Laden in Pakistan on May 2, said that vanquishing Al Qaeda was one of his most important goals as defense secretary. “Obviously we made an important start with that in getting rid of Bin Laden,” Mr. Panetta said. “We’re within reach of strategically defeating Al Qaeda. And I’m hoping to be able to focus on that, working obviously with my prior agency as well.” Mr. Panetta, who rarely spoke on the record as C.I.A. director but has a more public role now, offered few details to bolster his assessment. But intelligence officials have said that computer files retrieved from Bin Laden’s compound in Abbottabad, Pakistan, showed that the organization was in dire need of money and struggling under persistent American drone strikes on its leadership. “I think now is the moment,” Mr. Panetta said. “I do believe that if we continue this effort, we can really cripple Al Qaeda as a threat to this country.”
Now saying that we're winning, even that we're getting close to victory, is very different from saying that we've won and that hostilities are over. Moreover, defeating Al Qaeda is not the same thing as the termination hostilities more broadly. The termination of AUMF hostilities in general, of course, would have to include hostilities against the Taliban too--which is not a mere 20 kills away. So I don't doubt that this is a long-term issue. As long as large numbers of U.S. troops are deployed in Afghanistan fighting under the legal authority of the AUMF, the administration will have a pretty solid legal argument that its authority to detain people captured in that conflict has not yet atrophied.
Still, Panetta's words--teasing victory as they do--bring to mind one of the central problems with law of war detention as an instrument of this sort of hybrid conflict: The assumption that you can simply release the enemy at the end of hostilities isn't clearly true. After all, if we ever do manage the strategic defeat of Al Qaeda, it will be because we have killed or captured its major personnel. Assuming we either kill or try (and convict) all of the true bigwigs, if we then release the rest of the captives, some non-trivial number of them will reconstitute the organization and the fight will begin anew.
Now don't get me wrong: I'm not arguing against releases and transfers, even some that involve assuming a measure of risk. But such tactical judgments about when one wants to use the power to detain in the context of the conflict is a very different thing from saying that as a matter of law, there is no conflict that permits detention at all.
This is one of the reasons I don't believe that conventional law of war detention is the optimal legal arrangement for incapacitating certain types of detainees who can't be tried for crimes. The mismatch between the premise of sort of detention and the way we regard this sort of detainee runs deep indeed. The premise of the detention is that the individual detainee is merely an honorable arm of a state, who will demobilize when the dispute between his country and the capturing country gets resolved. As Don Corleone might put it, the detention isn't personal; it's business. But that premise is just wrong when dealing with Al Qaeda operatives. The judgment that they pose a threat that requires neutralization is very personal. A nation state--or even a terrorist group with which one negotiates peace--has an existence larger than its military captured military personnel. A hypothetically defeated Al Qaeda does not.
I have no good solution to this problem--at least not in the context of conventional law of war detention. The most thoughtful treatment of the matter have read is this student note by a recently-graduated Columbia law student named Adam Klein. As I say, it's not an urgent problem, in the sense that practical conditions are most unlikely to force the issue acutely any time soon. But if the Secretary of Defense can publicly envision victory, it's out there. And it's time to start talking about it.
Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.
