Coming Soon: A Nation Not At War

In 2015, barring entry into an unforeseen new war in the meantime, the United States will be a nation no longer at war.

The End of Thirteen Years Of Conventional War Fighting

The war in Afghanistan will be over, assuming that President Obama and Congress continue to honor a commitment to the Afghan government to withdraw its troops by the end of 2014.  The United States will not have any troops engaged in conventional war fighting for the first time since shortly after September 11, 2001.  The parallel eight and a half year long Iraq War in which 4,487 U.S. solders were killed and 32,223 were seriously wounded, began on Thursday, March 20, 2003 and ended on Sunday, December 18, 2011. 

U.S. conventional military involvement in Afghanistan will have lasted thirteen years, although the number of U.S. troops committed to that conflict was much smaller than the current 66,000 or so (out of a total coalition force right now at 100,000) for most of its duration.  About 6,000 U.S. troops are anticipated to stay on there in a training and support role for Afghan security forces.  The peak size of the U.S. force in Iraq was 165,000 and the peak size of the total coalition force in Iraq was 176,000 (excluding new regime Iraqi security forces) and they were fully withdraw by December 31, 2011 (apart from the 160 Marines who guard the U.S. embassy).

The Status of the AUMF

Unless repealed by Congress (and some members of Congress have called for its repeal or modification, an effort that I support), the AUMF adopted on September 14, 2011 will remain in force.  This provides in the pertinent part:

[T]he President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

The AUMF is a rare declaration of war primarily against non-governmental organizations and individuals, rather than exclusively against another sovereign.  This isn't entirely unprecedented.  For example, one of the first declarations of war declared by Congress was the war against the Barbary Pirates in the vicinity of modern day Libya in the earliest days of the Republic, which is remembered historically for the Treaty of Tripoli (which declared that the United States was not a Christian nation) and in the Marine Corps anthem.

The Use of Force Pursuant to the AUMF Against Nations

The practical reality is that Afghanistan's Taliban regime is the only national government against whom the AUMF was used and the U.S. has discontinued this part of the war, even though some people who may have aided Al-Qaeda and thus helped to have facilitated the terrorist attacks are probably still at large (and arguably "harbored") in Saudi Arabia and Pakistan.

The Use of Force Pursuant to the AUMF Against Persons

All of the important individual persons who were involved in planning, authorizing, committing or aiding the terrorist attacks that occurred on September 11, 2001 who will ever be identified have died or been captured at this point, after Obama bin Laden was killed by U.S. Special Forces during President Obama's first term of office. 

The Use of Force Pursuant to the AUMF Against Organizations

We know that the September 11, 2001 terrorist attacks were planned, authorized, committed and aided by the terrorist organization known as Al-Qaeda and in particular branches of the organization based on Afghanistan and cells deployed to the United States.

Al-Qaeda was harbored by the Taliban regime, which while not longer existing as a national regime continues to exist as an organization in Afghanistan and in the Frontier Province of neighboring Pakistan and probably still harbors some remnants of the Al-Qaeda leadership as of 2001.  A (barely) covert war waged with drones, tips to Pakistan security forces secured with U.S. intelligence resources, and U.S. special forces troops over the last decade or so, however, has killed many of these individuals (hundreds? thousands?) at the cost of the lives similar numbers of innocent family members and associates of these individuals who have been collateral damage in this conflict.

New organizations created since September 11, 2001 have adopted the Al-Qaeda brand and declared an affiliation with the organization - Al-Qaeda in Iraq, Al-Qaeda affiliates in the current Syrian war, al-Qaeda affiliates in various Southwest Asian, East African and North African countries, many of which have mounted their own terrorist strikes, some against United States and U.S. interests.

Are Organizations Like Jabhat al-Nusra Within The Scope of the AUMF?

It is a stretch to argue, for example, that a revolutionary organization affiliated with Al-Qaeda like Jabhat al-Nusra is truly within the scope of the AUMF.  Jabhat al-Nusra was formed locally in Syria on a grass roots basis after the Syrian civil war that began March 15, 2011 (officially on January 23, 2012), only subsequently embraced an affiliation with Al-Qaeda (sometime around April, 2013).

Arguably, Jabhat al-Nusra voluntary affiliation with Al-Qaeda has made it a part of an organization that planned, authorized and committed the September 11, 2001 terrorist attacks and brought it within the scope of the AUMF.  Jabhat al-Nusra does engage in terrorism and was declared to be a terrorist organization by the United States in December of 2012.  And, while a nexus with the 9/11 determines the scope of the persons covered by the AUMF, the purpose of the AUMF was to use force in order not just to seek vengeance against those who harmed the United States in the past, but "to prevent any future acts of international terrorism[.]"

But, more particularly, the purpose of the AUMF is "to prevent any future acts of international terrorism against the United States."  Jabhat al-Nusra has never initiated terrorist attacks against the U.S. or any of its allies, or stated any interest in doing so.  The U.S. is currently aiding and arming other rebel groups who are fighting side by side against the Syrian regime in the same civil war.   Thus, while it may be appropriate for the U.S. to invoke the host of non-AUMF anti-terrorism laws to take action against Jahat al-Nusra and similar post-9/11 affiliates of Al-Qaeda, its nexus with the 9/11 attacks that establishes the scope of the AUMF is extremely attenuated.

Many terrorist organizations that are or claim to be Al-Qaeda affiliates are similarly situated, although a few of them have independently engaged in or threatened anti-U.S. terrorist acts.  Almost all of the functional Al-Qaeda organization that was involved in or is directly descended from the Al-Qaeda organization that carried out the 9/11 attacks, however, has been crushed.  

Time To Declare Victory?

Terrorism is a tactic and not a person, organization or nation.  Terrorism, sometimes under different names, has existed for thousands of years and will continue to exist until a "Heaven on Earth" utopia is brought into being, which I do not expect to happen any time in the next thousand years.

There will always be a need to spell out the state's authority to act against terrorists.  Now, while we are still paying attention and worried about terrorism as we wind down the war in Afghanistan, which is the last conventional war AUMF campaigns, but we are not in an immediate crisis, is a great time to develop a Congressionally authorized war on terrorism policy for the ages.  But, it has ceased to make sense to make someone's links to the 9/11 attacks, twelve or thirteen years later, a central consideration in how we fight a war on terrorism going forward.

It is time to declare victory in the unconventional war than the AUMF authorized, to repeal the AUMF, and to enact a new comprehensive set of laws governing the authority of the President to take on terrorists intend on harming the United States or its allies and interests in the future, without regard to their connection to the nations, organizations or persons that were somehow connected to the 9/11 attacks. 

The fight to take down every nation, organization and person connected to 9/11 has been successful.  We have killed of Osama bin Laden.  We have detained or killed of all other known Al-Qaeda members and senior Taliban officials who had any involvement and weren't killed in the attacks themselves.  We have crushed the Al-Qaeda organizations that carried out the attacks.  We swiftly brought about regime change in Afghanistan that stripped the Taliban regime of the sovereign power that they held over most of the country, have stabilized the new regime we helped the Afghan people to form, and will have withdrawn from Afghanistan after what will have been a thirteen year military presence at the end of 2014 (the longest war other than the "Indian Wars" in U.S. history).  We won.  The AUMF war is over and we should formally declare that this is the case on December 31, 2014.

Reforms For A Post-War National Security Regime

Shut down Gitmo.

President Obama has repeatedly expressed a desire to shut down the Guantanamo Bay detention camp, but has been thwarted by the Republican controlled U.S. House of Representatives that have prohibited him from doing so in Defense appropriations bills, and the President has chosen not to make overcoming this barrier a particularly high priority so far.

Despite a hunger strike by at least 104 of the 166 prisoners and appeals from Obama that the prison is too expensive to maintain and a recruiting tool for anti-American militants, the House voted, 249-174, to defeat an amendment [to the Defense Appropriations bill this year] calling for its shutdown by the end of 2014…Obama, who had pledged during his 2008 presidential campaign to shut down the Guantanamo prison, had his counterterrorism adviser, Lisa Monaco, call legislators this week in a last-ditch effort to build support for closing the base

From here.

In connection with a repeal of the AUMF, we should shut down detention facilities like Guantanamo Bay and the associated military tribunals, and detention facilities in Afghanistan (relocating those prisoners to U.S. based military prison facilities, or transferring them to detention facilities in their home countries, particularly Yemen, at this point).  As explained here:

Since January 2002, 779 men have been brought to Guantanamo. . . . a 2006 report prepared by the Center for Policy and Research, Seton Hall University Law School reviewed DOD data for the remaining 517 men in 2005 and "established that over 80% of the prisoners were captured not by Americans on the battlefield but by Pakistanis and Afghans, often in exchange for bounty payments." . . . The Center for Policy and Research's 2006 report based on DOD released data, found that most detainees were low-level people who were not affiliated with organizations on U.S. terrorist lists. . . . By May 2011, 600 detainees had been released. Most of the men have been released without charges or transferred to facilities in their home countries. . . . As of June 2013, 46 captives (in addition to 2 who were deceased) were designated to be detained indefinitely, because the government said the prisoners were too dangerous to transfer and there was insufficient admissible evidence to try them.

According to this Wikipedia article:

As of March 2013, 166 detainees remain at Guantanamo. 

The detention camp was established in January 2002 and the vast majority of the men for whom a date of capture is available were captured in 2002 and 2003.  There was one case of a 2003 capture and 14 "high value prisoners" were transferred there (apparently after lengthy detentions in other secret CIA prisons) in 2006.   

The military tribunal cases made against many them and the other available evidence about these "high value prisoners" tends not to support the assessment that even these fourteen were important individuals in Al-Qaeda or the Taliban or other terrorist organizations, even if they weren't innocent of involvement in these organizations either.  Serious charges have been lodged against only five of them and those were brought using an unconstitutional Military Commissions Act process.

About 70% of men (about 120 of them) are cleared for release but their home countries have not been available to accept them back, or they have not been returned because the U.S. is not willing to have discussions with their home countries (this appears to be a particular issue in the case of about 30 Yemenis) or because Congressional intransigence impedes the process.

We should recognize, in hindsight, that the "enemy combatant" and military commission approach to fighting terrorism has been a failed experiment in how to respond to terrorism and fight unconventional wars that has done more harm than good to our cause.  In practice, military commissions and combatant status tribunals have been a far slower way to get to the truth about each case than the ordinary criminal justice system and the convictions obtained have not stood up to appellate review nearly as well as terrorism convictions obtained in the ordinary criminal justice process.

Many of the men were determined to be mostly harmless nobodies who would have been released sooner if only the notoriety attached to the facility hadn't made it hard to repatriate them.

The Bush administration's effort to secure a different legal status for Guantanamo Bay than for facilities in a U.S. state was soundly rebuffed by the U.S. Supreme Court when it considered that question.

This approach has been far worse than a civilian criminal justice approach at promptly bring terrorists to justice, but has provided a recruiting tool for new terrorists intent on doing harm to the United States and undermined the "soft power" that the United States once had as a result of a previously mostly untarnished history of respect for human rights.

There are some problems with simply declaring victory in the war under the AUMF.  Many of the detainees are not legitimately the subject of military commission trials for war crimes, so they can only be detained indefinitely until "the war is over" which a declaration of victory and repeal of the AUMF might trigger.  But, the administration is worried (perhaps not always with sound justification) that 46 of them would be a threat to the United States if released.

All of the detainees are deportable non-citizens, many have been detained for a decade or more already (hard time for what would have been middling to minor misdemeanors or felonies in the criminal justice system at best, and just bad luck or guilt by association in other cases).  Many of the detainees for whom there is no reasonable basis for bringing military commission proceedings, and even many who actually did face military commission trial, were basically bit players in the larger scheme of things at the time that they were apprehended, not the "worst of the worst."

The long period during which they were detained and the violation of the rights that they would have had in the criminal justice system in the meantime, casts real doubts on the legitimacy of any attempt to prosecute any of these men (and they are all men) in the criminal justice system after a period of military detention.  Most troublingly, if they are released, they will be men who have every reason to really hate America and take up arms against it after having been given treatment that many neutral observers would agree is fundamentally unfair and improper.  We have created the monsters that a few of these men may turn out to become if released and need to figure out how to mitigate this risk to national security.

The shoddy quality of the prisoner classification efforts and military commission charges brought in these cases, moreover, seriously undermines the credibility of requests from the military to the public that we should trust them with unreviewable decisions on individual people's lives in this and other contexts.

Disavow the domestic enemy combatant doctrine

We should expressly disavow by statute the authority that the Bush administration claimed in the Jose Padilla and first Hamdan cases to use military authority to indefinitely detain U.S. citizens and legal immigrants within the United States and its possessions as "enemy combatants".  In these territories, so long as the courts are open and the government is operating, military justice has no place and the use of military force to enforce the laws and repel terrorists should be limited to circumstances where military aircraft or water craft or other military equipment can stop a terrorist (e.g. in control of a plane being used as a bomb, or a WMD carrying boat or submarine, or via a missile) that civilian law enforcement, the activated National Guard and the Coast Guard cannot - ideally never.

Domestic terrorism by people who are lawfully within the United States or its possessions as citizens or legal immigrants should always be handled as a criminal justice matter.

Put in place internal controls and civil liability measures to ban torture.

We should disavow and carefully define torture and establish effective independent internal affairs resources within the government to stop it and outside the government to obtain injunctive relief, exonerations from forced confessions, and money damages for torture victims, even suspected terrorists.

Rewrite intelligence authorization laws to balance terrorism prevention, privacy and transparency

We should abolish the FISA court that has in hindsight been a worthless rubber stamp and star chamber, should repeal the Foreign Intelligence Surveillance Act that authorizes its action and should repeal the domestic intelligence gathering provisions of the Patriot Act, in favor of a new counter-terrorism intelligence and foreign intelligence regime.  The new regime should have more transparency, should draw more firm and clear lines between what may and what may not be kept private in the absence of adversarial court proceedings so that Americans can have some expectations of privacy in something, and should have an oversight mechanism that includes someone with a genuine interest and incentive to protect civil liberties and to keep the public informed to the maximum extent possible in the process, since we are a democracy.

Years of secret, rubber stamp FISA court proceedings and the revelation that multiple administration officials have profoundly mislead Congress and the public regarding what it was doing already has deeply undermined the credibility of FISA's institutions as institutions that deserve the public's trust.

Disclosure should be much more rich than it is today.  All legal positions, for example, should be disclosed.

Develop a new statutory framework for targeted strikes against terrorist targets

We should put in place a credible, fair process for vetting the targeted use of force against foreign persons and property outside the United States.

The new regime should limit such strikes to situations when:

(1) it is necessary to do so because cooperation from a civilized sovereign government of the territory cannot be secured in a time frame necessary to apprehend those involved or prevent future harm,

(2) the U.S. lacks the ability to detain them without killing them without putting the people charged with doing so in grave risk of harm to themselves relative to killing them or causing their associates to carry out violent terrorist or criminal acts against U.S. interests,

(3) there is clear and convincing evidence that the individuals are operatives who have carried out or been pivotal players in carrying out terrorist acts against the U.S., U.S. interests or U.S. allies in the past, or are key operatives of organizations that have carried out terrorist acts against the U.S., U.S. interests, or U.S. allies in the past, or in the process of imminently executing such an attack,

(4) the evidence has been meaningfully reviewed by a responsible senior executive branch official with easy access to the President on an individualized basis, and

(5) there is some form of due process with meaningful independent advocacy on behalf of the U.S. citizen target with resolution of the matter is made by an ordinary U.S. District Court acting as an ordinary Article III court before the strike is carried out if the target is a U.S. citizen.  If nothing else, we need at the very least something like a court appointed guardian ad litem or "devil's advocate" in the system to argue for their interests.

With regard to the fifth requirement, in many cases the appropriate approach will be to revoke the citizenship of U.S. citizens suspected of involvement in foreign terrorist organizations in an ordinary civilian citizenship revocation proceeding under ordinary immigration law rules, and then to dispense with the provisions of the fifth requirement because the individual is no longer as U.S. citizen.

The system should also expressly require regular disclosure of how this authority has been used.  Summary information including the number of strikes authorized, the number of strikes carried out, the number of targets successfully destroyed, and the number of instances of collateral damages with generic identification of human and property damages resulting from the strikes should be made available on a quarterly or annual basis, with detailed rich reports of each incident provided long enough after the fact and with modest redactions of operative identities sufficient to prevent compromise ongoing operations, that still give enough information to the public to meaningful evaluate and second guess the executive branch decisions that have been made in those cases.