When al Qaeda launched the 9/11 attacks, it also thrust the United States on a decade-long (and counting) search for the best way to combat the unconventional threat posed by terrorism. That search evolved into a competition of sorts between the military’s Special Operations Forces (SOF) and the paramilitary operatives of the Central Intelligence Agency (CIA) for the prestige and resources that went with leading the fight against terrorism. Within less than a decade, however, various officials involved in counterterrorism policy were trying to combine the two groups of operators in a way that maximized the advantages and minimized the risks and constraints of each group.
Many critics of the George W. Bush administration’s wholehearted push into the realm of shadow wars – covert operations in countries with which the United States was not at war – assumed that the situation would improve when Barack Obama became President. To the surprise of many, if not most, of his campaign supporters, however, President Obama has, in some ways, become an even more ardent supporter of shadow wars than his predecessor. And, as this article will show, just about every indication points to a further expansion of this hybrid military and intelligence activity in countries beyond war zones. It is imperative, therefore, that we more clearly understand how these shadow wars are being conducted and by whom, and whether they are subject to adequate oversight and accountability.
In January 2011, Congress enacted legislation prohibiting the use of federal funds to transfer to the United States any individuals currently detained at Guantánamo Bay, Cuba. Among the purposes of this provision, observers commented, was to prevent the prosecution of these detainees in federal court in the United States. President Obama signed the legislation into law as part of the Defense Authorization Act, but he also issued a statement strongly objecting to the provision and pledging to seek its repeal:
[This provision] represents a dangerous and unprecedented challenge to critical executive branch authority to determine when and where to prosecute Guantánamo detainees, based on the facts and the circumstances of each case and our national security interests. The prosecution of terrorists in Federal court is a powerful tool in our efforts to protect the Nation and must beamong the options available to us. Any attempt to deprive the executive branch of that tool undermines our Nation’s counterterrorism efforts and has the potential to harm our national security.
The congressional action and the President’s response are part of a broader public debate about the role of law enforcement as a counterterrorism tool. Some question the effectiveness of the U.S. criminal justice system and argue that it should never be used against terrorists, or at least some kinds of terrorists. In contrast, some others argue that law enforcement is the only legitimate way to detain terrorists, and that they should either be prosecuted in the civilian courts or released. This article argues that we should continue to use all of the military, law enforcement, intelligence, diplomatic, and economic tools at our disposal, selecting in each case the particular tool that is most effective under the circumstances, consistent with our laws and values. The discussion proceeds in five main parts.
The filling of a judicial vacancy provides a unique opportunity to examine not only the appointment or election process, but also the court itself and its work. For obvious reasons, this has been recognized in connection with the Supreme Court of the United States,1 where vacancies are often the subject of much conjecture but, because of life tenure, remain essentially unpredictable. On a less lofty plane, the opportunity to take stock also occurs in other courts, and the timing, at least, is less a matter of speculation in non-Article III courts, where judges serve for fixed terms.
A case in point is the expiration of Chief Judge Andrew S. Effron’s term on the United States Court of Appeals for the Armed Forces (referred to here as the Court of Appeals) on September 30, 2011. It is appropriate to consider the process for filling his seat; the standards that, based on the law and past experience, must, could, or should not be taken into account in choosing a successor; and the possible impact on the court and its jurisprudence.
While national security law covers a broad swath, military justice is a key component, since good order and discipline are integral to a credible military capacity, and notwithstanding the remarkable trend towards the use of high technology in national defense, uniformed personnel – human beings – and their conduct (both actual and desired) remain the heart of the matter. Hence, the filling of Judge Effron’s seat is properly viewed as potentially impacting on national security.
It is impossible to have a meaningful debate over whether a civilian court or a military commission is a more appropriate forum for trying terrorism suspects so long as serious questions remain over whether the commissions may constitutionally exercise jurisdiction over particular offenses and/or offenders. And yet, although a number of defendants have attempted to challenge the jurisdiction of the military commissions – especially under the MCA – none of their cases have managed to produce a decision on the merits from any court higher than the Court of Military Commission Review (CMCR). Instead, the federal courts have generally relied on ‘abstention’ doctrine, holding that challenges to the commissions, including to their jurisdiction, can – and should – be resolved on post-conviction appeal. … [T]he time has long since passed for a careful explication of the issues, the relevant precedents, and the most likely answers.
The assessment of facts to determine if peacetime law or the law of armed conflict is the correct choice involves the same analysis used in resolving other choice of law questions. Lawyers and judges constantly make choice of law decisions. Choice of law is part of the consideration of every legal matter. … In the terrorism-related cases discussed [here], international law … determines the choice of law. In these cases, choice of international law sends us, generally, to the domestic criminal law of the United States, Pakistan, Yemen, and other states. It does not send us to the law of armed conflict.