End of (which) war?

A “formal” end to “America’s longest war”?  That’s how many media outlets are describing the transition of NATO’s role in Afghanistan this week from an “International Security Assistance Force” to a new mission entitled “Resolute Support.”  And that’s certainly the message the United States is trying to convey.  In a ceremony in Kabul on Monday, for example, the commander of the International Security Assistance Force, Gen. John Campbell, said that this week marks “an end of an era … and the beginning of a new one,” because “today, NATO completes its combat mission.”  The Secretary of Defense said the same:  As of Thursday, “[o]ur combat mission in Afghanistan, which began in the aftermath of the September 11, 2001 attacks, will come to an end.”  And most striking of all was President Obama’s own statement:

Today’s ceremony in Kabul marks a milestone for our country.  For more than 13 years, ever since nearly 3,000 innocent lives were taken from us on 9/11, our nation has been at war in Afghanistan.  Now, thanks to the extraordinary sacrifices of our men and women in uniform, our combat mission in Afghanistan is ending, and the longest war in American history is coming to a responsible conclusion.

What does President mean when he states that the “war” in Afghanistan is concluding?  After all, although the U.S. combat mission might have ended, the fighting has not stopped:  Indeed, as some of the same news reports explain, “insurgents” (presumably Taliban forces, among others) have recently inflicted more casualties upon the Afghan people–even if not on U.S. forces or persons–than they have in the past.  And although U.S. (and other NATO) forces may no longer take the lead in the fight, they will continue to provide what the new mission’s name suggests, that is to say, “resolute support” to the Afghan forces–support that presumably will include the use of lethal force in at least some circumstances.

I’ll leave to others the questions of whether and in what respect the “longest war in American history” might be ending as a matter of international relations, operational details, or simple political rhetoric.  For purposes of this blog, however, the important question is what, if anything, we should make of this week’s mission transition in terms of a possible change in legal authorities.  And in order to address that question, it is important not to fall into the trap of assuming that the United States has been engaged in one long, undifferentiated “war on terror,” or “forever war,” but instead to distinguish between at least two “armed conflicts” that are very much distinct for operational and legal purposes:  (i) the U.S.’s armed conflict with al Qaeda; and (ii) the U.S.’s armed conflict with the Taliban.*

It is also important to identify the two most important legal questions that turn on whether either or both of those armed conflicts will continue beyond tomorrow**:

First, if the U.S. continues to be engaged in an armed conflict against a particular enemy–whether it be al Qaeda or the Taliban–then U.S. forces may lawfully attack the members of such enemy’s forces on the basis of their status, as long as such attacks comply with the laws of war (i.e., the jus in bello).  If, on the other hand, the relevant armed conflict has ended, then such status-based attacks would run into at least two possible legal constraints:  (i) they would arguably violate customary and/or treaty-based human rights law; and (ii) there might no longer be any domestic-law authority for such status-based strikes under the 2001 AUMF.  (They could also constitute crimes under Afghan law in at least some cases where the Afghan government does not consent to them, because there would no longer be combatant immunity; but that is an unlikely scenario.)

Second, the end of an armed conflict against a particular enemy will have an effect on the military’s domestic-law authority to detain members of that enemy’s forces at Guantánamo.   (In very important but largely overlooked news, the U.S. ended all of its detention operations in Afghanistan itself a couple of weeks ago.  So at this point, Guantánamo is the only place where the U.S. military is detaining al Qaeda and Taliban forces.)  In that case, the AUMF would likely afford the President the authority to continue to detain such persons only for a reasonable “wind down” period.

With that in mind, let’s review what this week’s developments might mean for the two Afghanistan-related armed conflicts:

The armed conflict with al Qaeda

The U.S. armed conflict with al Qaeda (al Qaeda “Central,” in particular) surely has taken place in Afghanistan, but it has not been limited to that nation.  In particular, the conflict with al Qaeda now primarily occurs in Yemen, against AQAP (which the U.S. has concluded is part of al Qaeda and/or a co-belligerent of al Qaeda).  The Executive branch almost certainly is of the view that this transnational armed conflict with al Qaeda–that “war,” to use the President’s terminology–has not ended.  Indeed, that conflict might even continue, in the Executive’s view, in Afghanistan itself.  There is a hint of this notion in the Secretary’s statement, in which he emphasizes that “we will continue our counterterrorism mission against the remnants of Al-Qaeda to ensure that Afghanistan is never again used to stage attacks against our homeland,” and in the President’s statement (“At the invitation of the Afghan government, and to preserve the gains we have made together, the United States–along with our allies and partners–will maintain a limited military presence in Afghanistan to train, advise and assist Afghan forces and to conduct counterterrorism operations against the remnants of al Qaeda.”).

To be sure, status-based attacks against al Qaeda forces outside the Afghan theater, i.e., in Yemen, are generally foreclosed by the President’s 2013 Policy Guidance.  Even so, it is probably fair to infer from these statements–and, even more so, from the President’s statement in September that the 2015 mission in Afghanistan will include “targeting the remnants of Al Qaeda”–that U.S. forces will continue to attack al Qaeda forces (and facilities) in Afghanistan on the basis of their status.  And if that’s correct, then the Executive must have concluded that the armed conflict with al Qaeda continues and extends to Afghanistan, even after the change in combat mission this week.

As for military detention, habeas counsel for some al Qaeda detainees at GTMO undoubtedly will soon begin to urge district court judges to hold that the AUMF detention authority with respect to such detainees has expired because (in the words of the President) “our combat mission in Afghanistan is ending, and the longest war in American history is coming to a responsible conclusion”–an argument that Justice O’Connor anticipated in her controlling opinion in Hamdi (542 U.S. at 521).  In response, the Executive branch likely will argue that the U.S.’s armed conflict with al Qaeda continues, at least for the time being, and especially in Yemen, which is home to the majority of the remaining al Qaeda detainees.

Of course, the Executive branch might not be entirely successful in pressing that argument in habeas litigation.  In order to prevail against the new habeas challenges that are sure to emerge in the coming weeks, the Executive will have to convince the habeas courts, at a minimum, that the armed conflict with al Qaeda continues.  Whether the courts accept that argument will depend in large measure on what facts the government can demonstrate to the courts’ satisfaction concerning recent hostilities between the U.S. and al Qaeda–and on how much deference the courts afford the Executive branch.  (A bit more on the respective roles of the branches below.)  For example, what if the courts were to find that the U.S. has, in the President’s words, “devastat[ed] the core al Qaeda leadership,” leaving behind only “remnants” of that organization, and that therefore the U.S. is no longer engaged in an armed conflict with al Qaeda Central . . . but that the armed conflict with AQAP continues?  What would such a holding mean for GTMO detainees who were detained because they were AQ forces?  What if they are also Yemeni nationals?  Alternatively, what if the habeas courts find that al Qaeda’s attack capabilities have been devastated–but that it continues to have aims of striking the United States whenever possible?  Would we then be at what Jeh Johnson called “a tipping point,” at which “so many of the leaders and operatives of al Qaeda and its affiliates have been killed or captured, and the group is no longer able to attempt or launch a strategic attack against the United States, such that al Qaeda as we know it, the organization that our Congress authorized the military to pursue in 2001, has been effectively destroyed”?–and if so, what would that mean for the AUMF authority to detain former AQ forces?  These are the sorts of difficult questions we can expect the habeas courts to confront in the coming months, in light of this week’s developments.

The Taliban

In contrast with its position on the armed conflict with al Qaeda, the Executive branch view might be that the 14-year armed conflict between the United States and the Taliban is, in fact, over.  It’s hard to say for certain, however, not only because the “Taliban” is not even mentioned in the official government statements issued this week, but also because of this recent report from Mark Mazzetti and Eric Schmitt.

According to Mazzetti and Schmitt, the President recently signed some sort of order that will authorize U.S. forces to “attack” the Taliban, and to employ airstrikes and “accompanying” ground troops to support Afghan military operations against the Taliban, in at least “certain circumstances.”  It’s not clear exactly what this order authorizes.  According to the story, “a senior administration official insisted that American forces would not carry out regular patrols or conduct offensive missions against the Taliban next year,” and, in fact, it appears that status-based use of force against the Taliban is precluded:  “We will no longer target belligerents solely because they are members of the Taliban,” the official said.  Instead, the President appears to have authorized some sorts of actions in self-defense (or defense of Afghan forces); according to the same (unidentified) official, “[t]o the extent that Taliban members directly threaten the United States and coalition forces in Afghanistan or provide direct support to Al Qaeda, . . . we will take appropriate measures to keep Americans safe.”  Even assuming this account is accurate (no sure thing, of course), it remains to be seen what will constitute a “direct” threat to U.S. and coalition forces, or “direct support” to al Qaeda, sufficient to trigger the authority to attack Taliban forces.  “The officer said he expected the Pentagon to issue an order in the next several weeks detailing the military’s role in Afghanistan in 2015 under Operation Resolute Support.”  (I assume that DOD order will be classified.)

Even if the President has issued such an order authorizing attacks on Taliban forces in some circumstances, that would not necessarily mean that the U.S. will remain in an armed conflict with the Taliban.  Sporadic use of force in self-defense, for instance, does not necessarily rise to the level of an “armed conflict” under international law.  Indeed, the President’s own statement that “the longest war in American history is coming to a responsible conclusion” might be a signal that the United States’s considered view is that the armed conflict with the Taliban will not continue into 2015.

There might not be any occasion in the near future, however, for the Executive branch to stake out a public position on that legal question.  The obvious triggering event for such an articulation would be renewed habeas petitions (or motions for reconsideration) made by remaining GTMO detainees who are being held because they were Taliban forces.  It is not clear, however, how many such Taliban detainees remain at GTMO:  It is almost certainly a very low number.  Indeed, perhaps there will be no such Taliban detainees at GTMO in the next few weeks, after the next ten or eleven expected transfers.  In that case, there would be no further habeas litigation in which the question of whether the armed conflict with the Taliban would be relevant.

What is the test for whether an “armed conflict” has ended, and who decides?

Let’s assume, however, that the issue remains a live one in the habeas litigation, and let’s further assume, for the sake of argument, that the U.S. argues to the court that the relevant armed conflict–with al Qaeda or with the Taliban, depending on the detainee–continues.  The court would then be confronted with at least two fundamental questions:  (i) What are the criteria for determining whether an armed conflict has ended, for purposes of international law (which in turn affects AUMF and other domestic-law authorities)?  And (ii) who decides?

As for the substantive question of how to determine when the conflict has ended, well . . . it’s very complicated, to say the least.  The intensity and regularity of hostilities between the relevant parties would certainly be important determinants.  If, for example, the U.S. and the Taliban rarely exchange fire (or other forms of attack) for an extended period of time, it would become increasingly difficult to sustain the notion that the armed conflict continues between those parties.***  But beyond that, there’s no easy formula that explains where, exactly, to draw the line separating “war” from “the end of the conflict.”  It’s important to clarify one thing, however:  Statements of political leaders, such as the President’s assertion on Monday that “our combat mission in Afghanistan is ending, and the longest war in American history is coming to a responsible conclusion,” can certainly be relevant to the question of whether an armed conflict continues, but they are not determinative.  By almost all accounts, the test under international law is an “objective” one, based upon the state of the actual hostilities between the parties.  Obviously, then, the question of armed conflict vel non is not entirely within the control of one of those parties, such as the United States.  If, for example, the Taliban were to continue to engage in regular, status-based strikes against U.S. forces in Afghanistan, that would likely result in a continuation of the armed conflict, notwithstanding the U.S.’s previous statements that the war is over.  (And the converse is the case, too:  Statements by one party, such as the U.S. Executive, that a noninternational armed conflict continues, does not make it so.)

As for the second question–who decides?–within the United States the “end of conflict” question is typically determined by the political branches.  Habeas judges would likely pay a great deal of deference to the Executive branch, at least as to the question of what the facts “on the ground” are in terms of continuing hostilities between the relevant parties.  It remains to be seen, however, whether those judges would be equally deferential in determining whether such facts do, or do not, add up to a continuation of the relevant armed conflict as a matter of international (and thus AUMF) law.

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* Of course, the more recent U.S. armed conflict against ISIL, in Iraq and Syria, is distinct from either of these first two conflicts, even if they might share a common statutory authority because AQ and ISIL arguably each derived from a single organization covered by the 2001 AUMF.

** The end of an armed conflict might also have legal implications for a bunch of other statutory authorities under U.S. domestic law.  My focus here, however, is on the two most significant questions:  status-based use-of-force authority and military detention authority.

*** Another possibility:  If hostilities between the U.S. and the Taliban are themselves sporadic, would direct U.S. support of Afghanistan’s hostilities with the Taliban be sufficient to establish an armed conflict between the U.S. and the Taliban?  Even if Afghanistan does not consider itself to be engaged in an armed conflict with the Taliban–and therefore does not engage in status-based targeting or military detention of Taliban forces?  I’m not aware of any authorities that offer clear answers to such questions. 

About the Author(s)

Marty Lederman

Professor at the Georgetown University Law Center Follow him on Twitter (@marty_lederman).