Push a Square Peg into a Round Hole, or Build Another Hole?

First, sincere thanks to the OpinioJuris team for inviting me to share my thoughts on Ben Wittes exceptional book; and thanks to Ben for such a well researched, well written, and provocative work.

My initial reaction to the book was that Ben has hit the proverbial nail on the head in terms of defining the policy challenge surrounding how the United States should or must frame the response to the threat of transnational terrorism.  More specifically, Ben clearly exposes how efforts to squeeze the response to this threat into existing legal frameworks has stressed the legitimacy of this response in legal, policy, and public perception terms.  My take is that Ben concludes, as the previous posts highlight, that the combined impact of this effort exposes the necessity of crafting a “hybrid” legal framework to deal with the “hybrid” threat we do and will undoubtedly continue to face.

This proposition raises so many potential points of controversy, ranging from separation of powers to the question of whether the threat is genuinely characterized as “hybrid” or “different” from what the U.S. and other states have faced in past decades.  Others have already begun discussion on these issues.  What I would like to focus on is the basic premise that an effective response to the threat of transnational terrorist threat requires a new – or hybrid legal framework.

I have my doubts.  While I agree that if we try to fit the nature of this threat neatly into either a traditional law enforcement framework or an armed conflict framework, the result certainly does seem like trying to fit a square peg into a round hole.  As an interesting coincidence, I experienced this first hand on the day this online symposium began.  Yesterday I testified (out of order) as the first defense witness in the Hamdan military commission trial.  The defense requested that I offer my opinion on when the armed conflict with al Qaeda began.  Interestingly, the defense is not (to my knowledge) challenging the government assertion that the terror attacks of September 11^th initiated a state of armed conflict between the United States and al Qaeda (which I realize and pointed out during my testimony is itself an extremely controversial proposition from an international law perspective).  Instead, my testimony was directed to the question of whether that armed conflict began as early as 1998 as the result of al Qaeda attacks on U.S. interests, and statements made by al Qaeda leadership.  On that question, I am and was yesterday of the opinion that an armed conflict between the United States and al Qaeda did not commence until al Qaeda conducted attacks that led the United States responded with in a sustained campaign with military forces authorized to engage in status based attacks on al Qaeda (essentially invoking the law of armed conflict principle of military objective).

The question, however, reveals what I believe is the flaw in the government response to this threat that leads Ben and others to argue the compelling need to develop a hybrid legal framework – to build a “new hole.”  The range of charges alleged against Hamdan is, in my opinion, a metaphor for the confused government response to this threat.  Instead of adopting a bifurcated legal response: relying on the law enforcement legal paradigm when that capability is able to deal with a threat and shifting to an armed conflict paradigm when the nature of the threat defies the law enforcement response capability (for example, use of an AC-130 Gunship to strike a known al Qaeda base camp in Somolia), the United States appears to continues to use assertions of authority derived from the law of armed conflict as a matter of convenience and not a matter of necessity.  And, in some situations, the government inexplicably uses the law enforcement response paradigm for conduct that seems clearly to fall into the armed conflict realm (Hamdan is facing war crimes allegations for conduct that occurred as early as 1998, and John Walker Lindh is prosecuted in federal court for taking up arms against U.S. forces on the field of battle). 

As Ben points out so effectively, this confusion extends well beyond criminal trials.  Detention is another area to which Ben devotes much attention, and justifiably so.  Again, however, I wonder if the confusion related to detention is the result of ineffective legal frameworks or the unjustified mixing of existing authorities.  To this date, the government has failed to articulate a clear and precise definition of enemy combatant, a designation resulting in detention as a necessary incident of war.  Instead, the definition seems almost worse than the classic pornography definition of “you know it when you see it”, seeming more like “you know it when you say it.”  This leads Ben to conclude that some detainees with a genuine inclination to return to belligerent acts against the United States might be released due to the imposition of inappropriate process, while others who never were and never will be belligerents in a conflict with the United States linger in military detention.

This confusion on the appropriate legal framework to apply to this threat is obviously the driving force behind Ben’s proposal for a hybrid framework, critique of the unprecedented activism of the Supreme Court in this national security policy realm, and emphasis on the need for a more assertive Congress.  On the last point I agree totally, and, on just one issue, have believed for some time that if Congress had provided a statutory definition of “enemy combatant” legitimately linked to the law of armed conflict, the Supreme Court would have been far less likely to wade into this murky water.  I also agree with Ben that adopting a “rubber stamp” mentality for legislation has been and will continue to be relatively meaningless, a point I was reminded of yesterday in a case involving allegations of Material Support to Terrorism as a war crime simply because Congress chose to designate that offense as such (I simply do not believe there is any basis in international law for such a characterization). 

 But would a more principled and perhaps legally defined distinction between the law enforcement response and the armed conflict response allow the United States to put “square pegs into square holes” and forego the need to create a new legal framework?  I think it might.  On this point, I agree totally with Ben that it is very easy to underestimate the continuing nature of the transnational terrorist threat – a lesson clearly and painfully learned by the United States.  I also believe that there will be aspects of this “fight” that require the use of combat power with all the authority the law of armed conflict bestows to “take those measures necessary to bring about the prompt submission of an enemy”; and because I believe the authority to kill implies the authority to detain, individuals detained during the course of such operations are, in my opinion, justifiably subject to detention as enemy combatants.   But the “military” component in the “Global War on Terror” is only one aspect of that “war”.  In many (and perhaps even most) cases, the law enforcement framework can and should provide the government with the tools necessary to respond to the threat.

Defining the line between these two response modalities is obviously complicated.  But I doubt it is more complicated than crafting an entirely new legal framework to respond to the threat.  As Peter Spiro noted early in the discussion, whatever legal framework the U.S. adopts must comport with international legal obligations.  Any new framework is bound to butt against this requirement, potentially to a more extensive degree than invoking existing international legal authority (such as the inherent right of self-defense and fundamental principles of the law of armed conflict).  In the final analysis, considering the Military Commission Act and the unprecedented range of “war crimes” it created is arguably an indicator of how such a hybrid legal framework might evolve, I am not yet convinced that “building a new hole” will ultimately enhance the effectiveness of the U.S. struggle against this generational threat.