This post is the second in a series from Gabor RonaGeoffrey Corn, and Just Security’s Derek Jinks. The debate addresses a fundamental question for US national security law: What set of international rules should apply to the US conflict with Al-Qaeda? The laws of war? International human rights law? A combination of both? We organized this discussion as a three-way debate to identify and engage substantially different perspectives on the topic. Be sure to check back tomorrow for Round 2.

The United States has, since at least the passage of the Authorization for the Use of Military Force (AUMF) against those nations and organizations responsible for the terrorist attacks of September 11th, 2001, treated our efforts to disable al Qaeda, the Taliban, and associated forces as an armed conflict. Since that time and continuing to this day, critics have challenged the legitimacy of this legal characterization. Perhaps there are really only two clear aspects of this debate. First, that the U.S. has remained steadfast in this assertion of armed conflict as a predicate to leveraging the full scope of the nation’s military power to address this threat. Indeed, President Bush initially, and now President Obama, have employed U.S. military capabilities in a manner that simply cannot be squared with a law enforcement legal framework, and have been overt in their assertion that the struggle against al Qaeda is indeed an armed conflict. Second, that use of this power and the underlying assertion of armed conflict against transnational non-state groups continues to generate complex questions of when, where, and how to leverage this authority. It is therefore unsurprising that this issue continues to provoke intense legal scrutiny and criticism.

Certainly, the question of where, if at all, to draw the proverbial legal line between war and peace – and the accordant line between law enforcement and armed conflict – is complex, evolving, and critical.  For at its heart, this line drawing exercise defines the scope of ‘attack’ authority that U.S. armed forces may permissibly exercise. Once the nation crosses this proverbial borderline, international law justifies the use of deadly force as a measure of first resort against individuals based not on an individualized assessment of actual imminent threat, but solely on a reasonable determination of status as a member of the opposing belligerent force.  This Law of Armed Conflict (LOAC) construct thus stands in fundamental juxtaposition with accepted law enforcement/human rights based use of force authorities.  This juxtaposition then extends to both deprivation of liberty and criminal sanction, allowing use of status based preventive detention and trial by military tribunal for the captured enemy belligerent, neither of which would be tolerable in peacetime.

It is relatively clear that the LOAC applicability triggers adopted by the international community in the post World War II revision of the Geneva Conventions did not contemplate what is widely characterized today as transnational armed conflict – a non-international armed conflict between a state and a non-state opponent operating transnationally. While this revision did recognize, for the first time, the category of non-international armed conflict, these were understood to be generally synonymous with internal armed conflicts between a state and purely internal organized armed groups, or between such groups. That is to say that the prototypical non-international armed conflicts that the drafters had in mind in 1947 were traditional internal conflicts such as the Spanish Civil War.  However, the salient point of the adoption of Article 3 Common to the Conventions, as further reflected in the adoption of Protocol II, is the recognition that when opposition groups attain a certain level of organization, the military capability to engage in sustained hostilities, and the will to do so, the state is justified as a matter of necessity to confront such organized armed groups within and armed conflict paradigm.

Moreover, the Conventions, like the antecedent LOAC treaties that so heavily influenced their revision, did acknowledge that situations of armed hostilities might arise in the future that had not been contemplated by the state parties. This recognition first appeared in the Preamble to the 1899 Hague Convention, and is known as the Marten’s Clause, and a version of the Clause was subsequently included in the 1907 Hague Convention IV, all four 1949 Geneva Conventions, and the 1977 Additional Protocols to these Conventions.

The impact of the Marten’s Clause in analyzing the nature of the struggle with al Qaeda is both substantive and procedural. Substantively, it mandated a baseline standard of humane treatment for individuals captured and detained in the course of this struggle – a mandate unfortunately dismissed by the United States in the initial phases of this conflict (although subsequently satisfied as the result of the Supreme Court’s conclusion in Hamdan v. Rumsfeld that these detainees fell within the protection of Common Article 3 of the Geneva Conventions). Procedurally, it supports the assertion of a category of armed conflict that is beyond the scope of a textual analysis of the Geneva law triggering articles.

Twelve years after the September 11th terrorist attacks, however, highly informed experts both within and outside the government call into question the continuing validity of this characterization. Within the U.S. government, the debate has largely shifted from if the struggle against al Qaeda may properly be classified as an armed conflict, to whether that classification remains factually supportable. The President’s own statements that al Qaeda ‘core’ has been decimated and that U.S. actions have disabled its capacity to conduct large scale attacks on U.S. interests have fueled this debate. Additional uncertainty has resulted from administration statements regarding its policy towards executing future operations against al Qaeda. Some argue that recent administration statements regarding operations conducted beyond the geography of the ongoing hostilities in Afghanistan indicate a transition from conduct of hostilities to law enforcement norms: limiting attacks to high ranking al Qaeda officials based on a determination of imminent threat and employing deadly combat power only after exhausting less hostile means.  However, these arguments misconstrue statements of policy restraint for declarations of a shift in legal interpretation.

The imposition of policy-based constraints on LOAC authorities is certainly unremarkable. This is a routine process that occurs at every level of military operations – strategic, operational, and tactical – normally reflected in mission specific rules of engagement. However, the President and his administration have not always been clear on the basis for the self-imposed limitations on attack authority.  This has only served to fuel arguments that continuing to classify counter-terror military operations against al Qaeda is simply invalid.

But beyond the interesting debate over whether transnational armed conflict is or is not consistent with the 1949 law triggering articles of the Conventions, it is equally important to assess the pragmatic merit of treating the struggle with al Qaeda as an armed conflict. This assessment must begin with a candid acknowledgment of the binary legal authority framework applicable to any government response to a terrorist threat. Outside the context of armed conflict, government forces – to include military forces – must conduct operations pursuant to rules that comply with a pure human rights based response framework. This means that the methods and means used to disable the transnational terrorist threat must mirror those utilized in normal peacetime law enforcement operations: deadly force may only be employed in response to an imminent threat of death or grievous bodily harm, deadly force may employed only as a measure of last resort, and captured terrorist operatives must be promptly charged and brought to trial before a civilian criminal court, and released if prosecution is not feasible or trial results in acquittal. As noted above, LOAC based response authority is far more robust.

This binary operational response framework arguably reveals why the United States has and continues to characterize the struggle against al Qaeda as an armed conflict: the nature of the threat—an organized, militarily armed and trained force under the direction and control of hostile leadership that had engaged in a series of escalating deadly attacks—cannot be efficiently and effectively addressed pursuant to a pure law enforcement legal framework. According to both Presidents Bush and Obama (and perhaps even Clinton, although not nearly as the result of overt evidence), al Qaeda was and remains a threat at a level of organization, capability, and magnitude justifying this conclusion.  Both the legislative and judicial branches have endorsed this conclusion. Furthermore, the transnational nature of the threat and its process of ‘metastycizing’ by expanding to affiliates in areas beyond it’s original safe haven in Afghanistan necessitate an expansive geographic scope of operations in order to ‘take the fight’ to the enemy and deny the enemy functional geographic safe haven.

Reverting back to a pure law enforcement response will therefore seriously undermine the efficacy of U.S. counter-terror operations, and is not, at this juncture, legally compelled. While it is almost certainly true that an enemy like al Qaeda will never be brought to total submission in the way a more conventional enemy can be, it is also clear that the meaning of ‘defeat’ in the context of counter-terror operations – the ultimate military objective when fighting any enemy – is not analogous to the meaning of that term when fighting a conventional enemy. Defeat of a terrorist threats, like that posed by al Qaeda, is normally achieved by disrupting and disabling the efficacy of their operations, not be destruction of all capability. Indeed, a disruptive effect is likely the only feasible operational and strategic objective a state can hope to achieve against such a threat (consider the Israeli experience as an example).

Maximizing operational and tactical flexibility to strike high value terrorist targets – command, control, and communications; logistics; training centers; access to weapons – is essential to achieving this disruptive effect. Limiting response authority to law enforcement norms would undermine the ability of the United States to achieve this strategic objective, and would cede the initiative to the terrorist enemy by providing them functional immunity unless and until their efforts to attack the United States and our interests reach a point of law enforcement imminence. While the overall effectiveness of Article III prosecutions for terrorist related offenses indicates that abandoning the armed conflict characterization would be less significant with regard to post capture incapacitation than for pre-capture disruption, there always remains the possibility that a captured terrorist operative cannot be effectively prosecuted. In such cases, should the government possess compelling evidence that the individual represents an ongoing threat of terrorist activities – even if that evidence is incompetent for use at trial – release seems illogical. This, however, would be the result outside the context of armed conflict.

None of this is intended to suggest that the armed conflict characterization makes executing counter-terror operations ‘easier.’ There are and will remain highly complex issues even within this framework, to include how to define terrorist belligerent operative, the permissible geographic scope of counter-terror military operations, when captured operatives should be subjected to trial by civilian courts, where such captives should be detained, and if, when, and why the expanded scope of LOAC attack authority should be restricted as a matter of policy. In our view, the limitations on LOAC authority implemented to date by President Obama do not indicate an inherent invalidity of the armed conflict response framework, but that this response authority must always be adjusted in response to policy, diplomatic, and political considerations. In contrast, a total abandonment of LOAC authority would produce a significant disruptive effect on our counter-terror operations, not on the enemy.