More on the Afghan Drawdown's Destabilizing Impact on Detention Law

Excellent recent posts by Ben and Marty draw attention to the impact that the drawdown in Afghanistan likely will have on GTMO habeas litigation. I agree; we will certainly see a fresh wave of litigation.  And as part of that wave, we will see the argument that the law of armed conflict no longer applies (even if it did properly apply pre-drawdown). This is a point I harp on to no small extent in my paper Beyond the Battlefield, Beyond al Qaeda. There I point out that the GTMO cases have mostly involved ties to Afghanistan of one kind or another, and this combined with widespread consensus that a state of armed conflict existed in Afghanistan has long made it easier for the government to make the case that LOAC-based detention authority can be invoked.  This is one of two key "stabilizing" factors undergirding the existing body of GTMO caselaw (see pp. 181-83).  The drawdown is all but certain to remove that particular prop (see pp. 202-04).  (The other key stabilizing factor has been relative clarity about the identity of the organizations at the center of counterterrorism efforts under the AUMF; this stabilizing factor, too, is rapidly collapsing). Here's how I conclude the drawdown point in the article:

It does not follow that LOAC will be irrelevant to future uses of detention or lethal force. To the extent that the government continues to invoke LOAC, the persuasiveness of its arguments will vary from case to case. In some contexts, for example, the government can make relatively conventional arguments that the level of violence in a given state has risen to a level constituting a noninternational armed conflict, quite apart from whether there also exists a borderless armed conflict with al Qaeda or its successors. Where that is the case, and where the level of U.S. participation in those hostilities warrants the conclusion that it is a party to such a conflict, LOAC arguments may prove persuasive after all. Yemen currently provides a good example of an area ripe for such an analysis. But even in those cases, the very nature of the shadow war approach is such that there can be no guarantees that such arguments will be accepted, certainly not as they were during the first post-9/11 decade vis-`a-vis Afghanistan. And since not all shadow war contexts will match Yemen in supporting such a conventional analysis, attempts to invoke LOAC in some cases will have to stand or fall instead on the far broader argument that the United States is engaged in a borderless armed conflict governed by LOAC wherever the parties may be found. The borderless-conflict position at first blush appears nicely entrenched in the status quo legal architecture. It is supported, after all, by a substantial degree of cross-party consensus (it was endorsed most recently in a series of speeches by Obama Administration officials). But it has always been fiercely disputed, including by the International Committee of the Red Cross (“ICRC”) and many of America’s allies. That dispute was not so much resolved over the past decade as it was persistently avoided; the case law of that era almost always involved persons who could be linked in some way back to the undisputed combat zone of Afghanistan. Thanks to the U.S. government’s shift toward shadow war, however, this will not be the situation when new cases arise, as they surely will. Making matters worse, the U.S. government’s position on the relevance of LOAC to its use of detention and lethal force may become harder to maintain going forward even without a drawdown in Afghanistan due to the aforementioned decline and fragmentation of al Qaeda. The borderless-conflict position does require, after all, identifiable parties on both sides. Even if one accepts that the United States and al Qaeda are engaged in a borderless armed conflict, organizational ambiguity of the sort described above will increasingly call into question whether specific cases are sufficiently linked to that conflict (or to any other that might be said to exist with respect to specific al Qaeda–linked groups, such as AQAP). Again Warsame’s situation provides a useful illustration, or perhaps more accurately, a cautionary tale.

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Though widely perceived at the time as a period of great legal controversy and uncertainty, the first post-9/11 decade will in retrospect be perceived as a comparatively simple state of affairs during which it was largely undisputed that LOAC applied somewhere and that the central objects of the U.S. government’s use of detention and lethal force were entities one could coherently describe as al Qaeda and the Afghan Taliban. But that period is ending, and it may be that the second post-9/11 decade will witness far more serious legal disputes as a result.

(pp. 210-11)