One of the questions that has troubled many observers of United States government policy from September 11 onwards is what the “end of the conflict” is supposed to look like in this unconventional war. It’s one thing to say with regards to a conventional conflict – I don’t know when the end of the conflict will come, but certainly I know what the conditions for defining the end look like. One might say that about the armed conflict against Al Qaeda and its affiliates – it’s over when they are all dead, stop fighting, or something associated with conventional wars and their ends. But that doesn’t do justice to the problem of endings in unconventional wars not based around states, territories, or populations – even to many people like me, who think that the US’s “counterterrorism-on-offense,” drone strikes and all, is a good policy and legally defensible. It’s not merely a question of not knowing when the end-point is reached; it’s not having good criteria for knowing what the end-point is.
Today at Oxford University, Department of Defense General Counsel Jeh C. Johnson makes a serious attempt to grapple with the conditions defining the endgame. Critics have sometimes dismisssed the series of speeches made by the senior lawyers of the leading national security agencies as mere PR – a charge I think quite unfair. This speech, in particular, takes on a very difficult topic, melding law, policy, and national security strategy - peering perhaps far into an uncertain future, and seeking to articulate how the US government sees conditions for the end of the conflict with Al Qaeda. No predictions for when that might be, but instead seeking to set out the conditions of what it looks like – along with a very and (explicitly and implicitly) densely packed sentence or two about the lawful tools for counterterrorism once counterterrorism abroad is no longer governed by the armed conflict legal paradigm. Lawfare has the text of the full speech.
This is a significant articulation of the US government’s view of law and policy on counterterrorism, and I predict it will have a shelf life in the national security and foreign affairs jurisprudence of the United States well beyond this administration. Let me flag this bit in particular (leaving out the footnote citations and dropping some paragraph separations) (Note: I’m currently not opening posts for comments.):
We cannot and should not expect al Qaeda and its associated forces to all surrender, all lay down their weapons in an open field, or to sign a peace treaty with us. They are terrorist organizations. Nor can we capture or kill every last terrorist who claims an affiliation with al Qaeda.
I am aware of studies that suggest that many “terrorist” organizations eventually denounce terrorism and violence, and seek to address their grievances through some form of reconciliation or participation in a political process. Al Qaeda is not in that category. Al Qaeda’s radical and absurd goals have included global domination through a violent Islamic caliphate, terrorizing the United States and other western nations from retreating from the world stage, and the destruction of Israel. There is no compromise or political bargain that can be struck with those who pursue such aims.
In the current conflict with al Qaeda, I can offer no prediction about when this conflict will end, or whether we are, as Winston Churchill described it, near the “beginning of the end.” I do believe that on the present course, there will come a tipping point – 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.
At that point, we must be able to say to ourselves that our efforts should no longer be considered an “armed conflict” against al Qaeda and its associated forces; rather, a counterterrorism effort against individuals who are the scattered remnants of al Qaeda, or are parts of groups unaffiliated with al Qaeda, for which the law enforcement and intelligence resources of our government are principally responsible, in cooperation with the international community – with our military assets available in reserve to address continuing and imminent terrorist threats.
At that point we will also need to face the question of what to do with any members of al Qaeda who still remain in U.S. military detention without a criminal conviction and sentence. In general, the military’s authority to detain ends with the “cessation of active hostilities.” For this particular conflict, all I can say today is that we should look to conventional legal principles to supply the answer, and that both our Nations faced similar challenging questions after the cessation of hostilities in World War II, and our governments delayed the release of some Nazi German prisoners of war.
For now, we must continue our efforts to disrupt, dismantle and ensure a lasting defeat of al Qaeda. Though severely degraded, al Qaeda remains a threat to the citizens of the United States, the United Kingdom and other nations. We must disrupt al Qaeda’s terrorist attack planning before it gets anywhere near our homeland or our citizens. We must counter al Qaeda in the places where it seeks to establish safe haven, and prevent it from reconstituting in others.