The President's statement that the armed conflict with al Qaeda must and should end lest we find ourselves in a "perpetual state of war", joined with approving commentary such as the NYT's "End of the Perpetual War", has led to the question of what will replace the "War Paradigm" ? A "Peace Paradigm", or something different from each of them. Specifically, what policies, strategies and rules will cover encounters with violent non-state actors ?

Those issues - with more questions than answers - are presently the gist of an ongoing conversation at Lawfare:

Does the Armed-Conflict Model Matter in Practice Anymore? (by Robert Chesney, Friday, May 24, 2013)

The Chesney Conjecture: Is This What Peace Looks Like? (by Benjamin Wittes, Monday, May 27, 2013)

Eight Thoughts on the Broad Reading of Article II Inherent in Bobby’s Conjecture (by Jack Goldsmith, Tuesday, May 28, 2013)

The key points made by Bobby Chesney about targeting and detention of violent non-state actors, using what is essentially a "War in Peacetime Paradigm", are these:

Formally speaking, the answer is straightforward. With respect to detention, the end of the conflict by definition spells the end of authority to detain for the duration of hostilities (albeit subject to some reasonable wind-up period). And with respect to targeting, the end of the conflict would preclude invocation of status-based targeting (i.e., targeting individuals based either on their membership in the enemy force or, perhaps, on a continuous-combat function theory that approximates status-based targeting). The question is: would any of that matter in actual practice?
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... 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.
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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.
Ben Wittes finds: "The single most challenging, interesting, and profound comments I have read about President Obama’s speech the other day is this post by Bobby. Drawn from his ongoing book project, Bobby poses the question of what the end of the conflict - sought by the Left for years and dangled before the American people in the President’s speech with passion and at length - really means." That being said, Ben asks a number of questions (and sub-questions):

[1] So the first question is an empirical one: Is the Chesney Conjecture correct? Put another way: Leaving aside residual detention operations and residual combat operations in Afghanistan, can anyone identify U.S. operations anywhere in the world that rely on the AUMF that would not also find support in self-defense law given the US’s interpretation of imminence? If so, what are the set of activities in which the US is currently engaged that will have to stop with the lapsing the AUMF?

[2] If the answer to this question is a null set and the logical conclusion is that we are already at peace (outside of Afghanistan), how do we feel about what we might term a militarily active peace - that is, a peace in which drone strikes and special forces operations take place regularly, a peace that is so minimally different from warfare that nobody (except Bobby) even noticed that we had transitioned from wartime to peacetime?

[3] If the Chesney Conjecture is correct, it follows as well that the current debate over the future of the AUMF - a debate in which Bobby and I have both actively participated - is a bit of a misfire. Rather than asking what new authorization the president may need to conduct the shadow war, the question we should be asking is: What sort of authorization - if any - should Congress give to the executive branch for the routine use of military force in peacetime? If we frame the question this way, is there greater room for agreement between those who have argued against and those who have argued for openness to a new AUMF?
Once one accepts a "militarily active peace" and the "use of military force in peacetime", one is following a "War in Peacetime Paradigm" - which may range from the more peacelike to the more warlike; but which is definitely neither "Peace" nor "War". I'd suggest that the World (and the US with the rest) have been following "War in Peacetime Paradigms" (of varying degrees of peacelike and warlike admixtures) since WWII.

Jack Goldsmith offered an eight-point critical analysis of the particular "War in Peacetime Paradigm" posited in Chesney's argument - snips are the first sentence in each block of Goldsmith's comments:

First, I agree with Bobby’s implication that we are on the road toward post-AUMF uses of military force around the globe justified entirely on the basis of selfdefense and the President’s Article II powers. ...
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Second, it would be an unprecedented expansion of Article II authority if the scope and scale of current military and paramilitary operations outside Afghanistan today were justified under Article II. ...
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Third, Ben asks: “[H]ow do we feel about what we might term a militarily active peace—that is, a peace in which drone strikes and special forces operations take place regularly, a peace that is so minimally different from warfare that nobody (except Bobby) even noticed that we had transitioned from wartime to peacetime?” ...
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Fourth, the stealth self-defensive war that Bobby describes and that I think the administration envisions in a post-AUMF world is even less bounded than the AUMF-war in this sense: force can be used wherever a threatening group meets the (slippery-at-best and auto-interpreted) “imminent threat” threshold, as long as the nation in question consents or is unwilling or unable to prevent the threat. ...
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Fifth, if it continues at anything like its current scale in a post-AUMF world, war based on Article II would be in even more need of congressional oversight and transparency than the AUMF war – especially in light the unboundedness described above, the Armed Services Committee’s apparent cluelessness about how DOD interprets its authorities today, and the Obama-era innovations of classified annexes to War Powers Resolution reports and the potential exclusion of many drone attacks from the WPR framework altogether. ...
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Sixth, between the Obama administration’s very expansive conception of “associated forces” (on display in the Armed Services Committee a few weeks ago) and its broad conception of an “imminent threat” that would justify the exercise of Article II uses of force, one can understand why the Executive branch is comfortable with its current authorities and does not want to change them, especially since the administration is allergic to military detention that a revised AUMF might (but needn’t) entail.

Seventh, and speaking of detention, the major limiting factor of an Article II self-defensive war is that long-term military detention by the USG would as a practical matter be off the table, leaving instead the combination of lethal force, criminal process, and rendition that prevailed before 9/11 and that (presumably along with proxy detention and proxy rendition) prevails now. ...
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Eighth, perhaps I am overreacting because any post-AUMF self-defensive war would be significantly reduced in scale from the current AUMF-war, perhaps back to the pre-9/11 era scale of rare lethal action combined with criminal process, rendition, and the like. ...
These are important issues which should not be limited to in-house discussions among lawyers. They are much more policy and strategy than law. I'd also suggest that the particular paradigm posited by Chesney as likely to be followed (which Goldsmith, and I, dislike) is not the only "War in Peacetime Paradigm" that one can select. The World's had enough small wars since 1945 to allow a wealth of choices.

Regards

Mike