Still More End Game

by Deborah Pearlstein

Look much beyond the blogosphere and you’ll be hard pressed to find many headlines about Jeh Johnson’s important speech at Oxford last week.

But important it was. Here are three more of the reasons why I think so.

1. It is difficult to overstate the depth of the scholarly consensus that existed (before last week) around the view that when Congress authorized the use of armed force against “those nations, organizations, or persons [the President] determines planned, authorized, committed, or aided” the attacks of September 11, the “war” thus undertaken was one without identifiable end. That is, the view has been that not only would it be impossible in advance to identify when the use of armed force would cease – it has of course never been possible at war’s beginning to identify on which definite date war will end – but there would be no set of events, circumstances, or conditions that could be imagined, the occurrence of which might bring about a recognition of the political, or in any objective way factual, end of the war. (I’ll spare blog readers the lengthy set of string cites in support of this proposition I had occasion to assemble for a research paper over the summer, but the list easily included sources from the political left, right and center.) That consensus no longer exists. Both on panels at the ABA’s review of the field of national security law conference over the weekend and in reading some of the other blog entries since, it now seems clear that some combination of Jeh Johnson’s speech and an accumulating set of facts on the ground has made it possible to talk about an end of the war – and the consequences for detention, targeting, and much else, that flow from that eventuality.

2. As I’ve mentioned elsewhere, e.g. here, and beyond the critical policy implications attendant the end of war (like how to reintegrate the 2.5 million-some returning veterans who deployed in one operation or another in the past decade), the authorization for use of military force is far from the only statute that ceases to have effect (or the same kind of effect) when “hostilities” are over. Take private security contractors. Under the Federal Tort Claims Act, private security contractors implicated in misconduct in combatant activities are immune from tort suits for a wide swath of activities, only if those activities are performed “during time of war.” What fraction of the $100 billion security contractor industry is potentially touched by this? Could be worth a little of someone’s time to find out. Either way, there’s an important broader point here as well. How one determines when a conflict (hostilities, war – the words, and often the applicable legal standards, vary) is over depends enormously on in what legal context the question is asked.

3. Speaking of how one determines when conflict is at an end, there is also the question of who makes that determination. Over the past 200+ years, the Supreme Court has had to determine when hostilities were over for purposes of determining the applicability of federal statutes of limitations, criminal jurisdiction and sentencing, tort and fraud liability, authorizations for various government activities, and yes, even the applicability of what we now call the international law of armed conflict. Sometimes the Court has looked to particular statements or actions of the President or Congress. Sometimes it has made the determination essentially on its own (using, for example, standard tools of statutory interpretation). Never has it declined to interpret a statute with an end-of-war condition on the grounds that it presented a nonjusticiable political question.

http://opiniojuris.org/2012/12/02/still-more-end-game/

2 Responses

  1. I wish I shared your optimism.  But I’m with Jack Goldsmith: Johnson’s speech is so full of vague generalities and qualifications that it seems unlikely the “war” against “al-Qaeda” and its “affiliates” will end in our lifetimes.  As long as there are terrorists, the U.S. will consider itself at war with them.

  2. I would also add that federal courts have consistently refused to determine whether the US is involved in an armed conflict with al-Qaeda (as opposed to determining how that conflict should be characterized).  Al-Awlaki is an example.  In light of that refusal, can we really be so sure they will feel comfortable determining whether or when that conflict ends?

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