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The post-9/11 claim that we are in an “armed conflict” with al Qaeda and its associated forces has long since ceased to matter in strict legal terms, other than in connection with the lingering detention of the legacy populations at GTMO and (for non-Afghan detainees) at Parwan. We have not taken new detainees into long-term military custody in many years, and there is no prospect that we will do so for years to come. What we do still do is use lethal force, but on close inspection, our uses of force outside of Afghanistan arguably do not depend on the existence of an armed conflict after all. As the Brennan speeches underscored, the government as a matter of policy has adopted constraints that limit the use of force outside the "hot battlefield" to scenarios involving an “imminent threat” to life in circumstances where capture is not feasible (albeit subject to an understanding of that phrase that would better be described as a “continuous threat” standard). This is far more restrictive than the status-based targeting model associated with armed conflict. Indeed, it is at least as restrictive as the boundaries of the self-defense model developed during the Reagan and Clinton years, discussed earlier. To be sure, that model was acted upon only rarely in the pre-9/11 era. There were many reasons for this, but a major one was sheer lack of practical capacity: we had little relevant intelligence when it came to tracking individual terrorist threats, and even when we obtained actionable intelligence our capacity to strike normally was limited by the multi-hour process associated with cruise missiles. Today things are quite different. The capacity for collecting the requisite intelligence has expanded by leaps and bounds thanks to sweeping institutional and technological changes over the past dozen years, and in the same period we have acquired an extraordinary capacity to strike quickly and precisely thanks to armed drones. In short, the practical constraints on using force in self-defense have been removed, and if we find ourselves once more without a claim of armed conflict to support uses of force, we may well discover as a result that the pre-9/11 legal model is much less constraining than commonly assumed. Indeed, one might conclude that there is nothing currently done outside of Afghanistan by way of targeting under the color of the law of armed conflict that could not be done under color of the pre-9/11 self-defense model. Combined with the abandonment of detention as an option, in fact, it makes no sense to talk of a return to the pre-9/11 framework; we already are there in practice.Yesterday’s speech reinforces my conclusion, as it clarifies both that the long-term detention option is defunct and that we are using force within boundaries that will be no different postwar thanks to the flexibility of the pre-9/11 self-defense model. Put another way, it seems to me ever clearer that the current shadow war approach to counterterrorism doesn't really require an armed-conflict predicate--or an AUMF, for that matter. If that is correct, it will please some and horrify others. At any rate, I'd appreciate hearing from readers as to whether they think this is in fact correct.