Ending the Endless War

Ending the Endless War

THE SOURCE: “The End of Al Qaeda? Rethinking the Legal End of the War on Terror” by Adam Klein, in Columbia Law Review, Nov. 2010.

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Will the war on terrorism ever end? The nature of the conflict—irregular, against a nonstate enemy—has raised fears that it won’t. Our traditional understanding of war, with its simple on/off options and relatively clear-cut legal distinctions, is
not well suited to the current conflict, argues Adam Klein, a law student at Columbia University.

The war on terrorism is now nearly 10 years old, legally inaugurated by the 2001 Authorization for the Use of Military Force. The law’s scope is broad, giving authority to the president “to use all necessary and appropriate force against those nations, organizations, or persons” that had any role in the 9/11 attacks “in order to prevent any future acts of international terrorism against the United States.”
Some aspects of the war on terror do resemble traditional warfare. The terrorist organization Al Qaeda, for example, is hierarchical and centralized, like a sovereign state. It is possible to imagine a time when Al Qaeda, weakened structurally and financially, is no longer a threat. (That time is not now. Al Qaeda was still strong enough in 2009 to assist the would-be Christmas bomber in his attempt to blow up a plane on its way to Detroit from Amsterdam.)
But many terrorism specialists argue that the graver threat today is from homegrown cells and lone individuals, such as Army psychologist Nidal Hasan, charged with the 2009 shootings at Fort Hood, Texas. Such terrorists, aided and inspired by Internet sites, are members of something that is more like a social movement than an organization.
Traditionally, the legal power to detain an enemy combatant is premised on—and limited by—the notion that a soldier is an agent of his sovereign. When the sovereign declares the war over, the soldier is no longer a threat. But that’s not true of terrorists who act on the basis of personal ideology.
Congress or the president could end certain aspects of the war on terrorism, such as military action, by a public act. But Klein argues that the federal government will still need the power to detain dangerous individuals. Courts, in his view, should be given the authority to assess the threat a detainee poses and the validity of his detention, in a process akin to deciding whether to release a criminal suspect on bail before trial. Thus, the power to detain would continue until each individual in custody had been released or died in detention.
This hybrid model of a war that extends certain wartime powers beyond others lacks the “superficially satisfying clarity” that comes with the absolute end to traditional wars, Klein concedes. But clarity is not a characteristic of the war in which we are now engaged.

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