The Rules - Engaging HVTs & OBL

[jmm99]

The scope of Chapters 1 & 2 is summarized in the Introduction:

Our examination of the speeches begins, in chapter 1, with a description of the framework they lay out. In this chapter, we describe - but largely refrain from analyzing - what the Obama administration has said about the legal framework in which it is operating with respect to such questions as the nature of the confl ict, the use of drones and targeted killings, detention, trial by military commission and in federal courts, interrogation, and the end of the conflict. The purpose of this chapter is to synthesize the various speeches into a single doctrinal statement that describes in holistic terms the administration’s approach in legal policy to the conflict.

Chapter 2 attempts to analyze the framework and examine the stresses upon it. We ask whether the framework is, in the main, the right one. Where has the administration gotten matters right and where wrong? Where is the framework under developed? In general, we argue, the administration has articulated a strong basis for institutional settlement of contested questions - one that gives future administrations a useful set of doctrinal positions on which to build as the conflict continues to morph. Important questions remain open, however, and the framework will require further refinement by both the administration and the legislature.

Here are two major points (one from Chapter 1; another from Chapter 2), which I've also argued here.

The argument [of those who oppose the use of the criminal justice system], as I understand it, is basically the following:

(1) We are at war.

(2) Our enemies in this war are not common criminals.

(3) Therefore, we should fight them using military and intelligence methods, not law enforcement methods.

This is a simple and rhetorically powerful argument and, precisely for that reason, it may be attractive.

In my view, however, and with all due respect, it is not correct. And it will, if adopted, make us less safe. Of course, it’s not that law enforcement is always the right tool for combating terrorism. But it’s also not the case that it’s never the right tool. The reality, I think, is that it’s sometimes the right tool. And whether it’s the right tool in any given case depends on the specific facts of that case.

Here’s my version of the argument:

(1) We’re at war. The president has said this many times, as has the attorney general.

(2) In war you must try to win—no other goal is acceptable.

(3) To win the war, we need to use all available tools that are consistent with the law and our values, selecting in any case the tool that is best under the circumstances.

Those tools include the "neutralization triad" (kill, capture, convert), where trials by civil courts, trials by military commissions and detentions without trials are all tools arising as part of the "capture" option.

Detentions without trial end when the armed conflict ends, bringing us to a major point from Chapter 2 - where the Obama Administration's position is far from clear (even given the President's last speech).

The End of the Confl ict and Extra-AUMF Threats

Some of the most important areas of underdevelopment in the speeches relate to the fragility of the AUMF as a basis for overseas counterterrorism operations into a future that law does not well describe. The AUMF is, after all, by its terms tied to the September 11 attacks. While it has supported the use of force against any number of groups, it will not do so forever as the conflict continues to morph. At some point, and with respect to at least some groups, the AUMF simply looks too remote. The president, of course, retains the authority, in both international and domestic law, to use force to attack these groups as an exercise of self-defense to the extent they pose an imminent threat to the United States. But such operations would not be part of the existing armed conflict authorized by the AUMF.
...
There are, after all, new threats that lie entirely beyond the AUMF—that is, national security threats that have no relationship at all to the matrix of threats linked to Al Qaeda, September 11, our current adversaries, or their causes. The day will thus come when the United States has to deal with some major terrorist threat that is not even plausibly within the AUMF’s
scope. Perhaps it will be from some terrorist group in Latin America, maybe from Hezbollah. But there will certainly be threats from non-state groups outside of the AUMF conflict that some president will someday feel compelled to address with force. It has been easy, over the last dozen years of armed
confl ict under the AUMF, to assume that all uses of force authorized by the president for reasons of national security are part of the same existing armed conflict - or that, to the extent they are not, they are part of a different armed confl ict as soon as they are undertaken, because they involve some new state-to-state conflict. Yet the modern evolution of warfare toward more micro-targeted projections of force - toward very small wars - suggests that presidents may well in the future seek to avoid the sustained violence that would legally establish an armed conflict.

These are much more matters of policy and strategy, than matters of law as conventionally defined.

Regards

Mike