INTERNATIONAL HUMANITARIAN LAW AND ASYMMETRIC WARS

Admittedly, the main body of IHL, the Four Geneva Conventions of 1949, is ill suited to regulate the behavior of states engaged in asymmetric wars against nonstate groups. With the exception of Common Article 3, which pertains to the treatment of enemies in noninternational (i.e., noninterstatal) conflicts, the 1949 Geneva Conventions govern wars between and among states. A subsequent development, Additional Protocol 1 (1977), was promulgated to bring IHL rules and norms to bear on specific kinds of asymmetric wars, specifically those in which nonstate groups are fighting against colonial domination, foreign occupation, or racist regimes. Although the United States never became a state party to Additional Protocol I—and protested that the creation of such a right to fight extended law of war protections to “terrorists”—the government accepted that some articles, such as those elaborating the principles pertaining to civilian immunity (which excludes civilians who directly participate in hostilities) and proportionality, do constitute customary, and therefore binding, international law. This acknowledgment of both the binding nature of customary international law and specific humanitarian principles regulating the use of armed force and violence was rhetorical and abstract but also a real articulation of the US government’s position on international law in the last decades of the twentieth century. For example, the US government, in its 1999 report to the UN Committee against Torture, stated:

This recognition of the binding nature of the customary law prohibition of torture was, in effect, renounced by Bush administration officials after 9/11; in its place the intellectual authors of the counterterrorism war paradigm, who assumed the role of “legal entrepreneurs” (Dezalay and Madsen Reference Dezalay and Madsen2012, 444), devised alternative interpretations of the state’s rights, which they self-consciously named “the new paradigm” (Smith and Eggen Reference Smith and Eggen2005). The three core, novel, and frankly radical arguments undergirding this new paradigm in its earliest iteration were: that the president’s constitutional commander-in-chief authority to pursue national security is unfettered by law, whether federal or international; that international laws, even those to which the United States is party, do not constrain US conduct overseas in this “war on terror”; and that customary international law principles are not binding. As Jens David Ohlin (Reference Ohlin2017, 89) explains:

A “war on terror” is, by definition, asymmetric and unconventional because the enemy is not a foreign state’s military, nor does the enemy that perpetrated the attacks of 9/11 even begin to approximate those kinds of territorialized armed groups that might assert a right to fight in accordance with the conditions delineated in Additional Protocol I. The 9/11 terrorist attacks perpetrated by al-Qaeda were a crime against humanity—deliberate acts targeting civilians or civilian infrastructure and causing large-scale human suffering. For these reasons, the contention that IHL might not apply would be plausible were it not for the fact that the Bush administration decided to characterize the 9/11 attacks as an act of war. The intellectual authors of the new paradigm engaged IHL by asserting that its applicability is contingent on reciprocity (i.e., that it only applies when fighting an enemy equally bound by its rules), ignoring the fact that the Geneva Conventions are binding on the US military regardless of the nature of the enemy because they are enshrined in the Uniform Code of Military Justice. Thus, one of the legal pillars of the new paradigm was the unfounded argument that the nature of the enemy determines the applicability or inapplicability of law.Footnote ³

The Bush administration launched the war with the ambitious but vague goal of defeating terror, and the AUMF imposed no temporal or geographical limits. The US military as well as the civilian Central Intelligence Agency (CIA)Footnote ⁴ were authorized to wage this war—to capture, detain, interrogate, and kill suspected enemies. Within a month of the 9/11 attacks, US special forces and the CIA were operating on the ground in Afghanistan and an international coalition composed of twenty-nine states plus NATO forces had formed to militarily invade the country, with the sanction of the UN Security Council that this was a legitimate war of self-defense. A year later, the Bush administration decided to extend the “war on terror” to Iraq. The March 2003 invasion by a US-led “coalition of the willing,” which did not have UN Security Council sanction, succeeded in toppling the regime of Saddam Hussein. But the military occupation, and especially the decision to de-Ba’athify the country by dissolving the public sector including the large Iraqi army (Sissons and Al-Saiedi Reference Sissons and Al-Saiedi2013), generated a violent resistance that created and attracted new enemies, who were interpretatively brought within the scope of the AUMF as “associated forces” of the original enemies.Footnote ⁵ The asymmetric violence in Iraq was compounded by sectarian bloodletting (Rosen Reference Rosen2010).

The Obama administration, which inherited the “war on terror” eight years later, instituted some policy changes, such as canceling the CIA’s prerogative to interrogate and detain people, but maintained and further developed the paradigm to rationalize the expanded geographical scope of kill operations against an expanding roster of enemies (Scahill Reference Scahill2013; Revkin Reference Revkin2018) and added the claimed right to extrajudicially execute unindicted citizens abroad (Jaffer Reference Jaffer2016). The Obama administration also inherited the overseas detention and military commission systems established by the Bush administration, which the new administration maintained for political reasons. Consequently, the Obama administration defended and solidified the position that US interpretations of the laws of war to detain, prosecute, and kill enemies are legitimate (Koh Reference Koh2010), even if they deviate significantly from international consensus. The Trump administration has expanded the geography of war even further while loosening some Obama-era limits on drone strikes and commando operations (Savage and Schmitt Reference Savage and Schmitt2017; see also Koh Reference Koh2017).

CONCEPTUALIZING COUNTERTERRORISM WAR AS A JURIDICAL FIELD

“Warfare has become a modern legal institution” (Kennedy Reference Kennedy2006, 6). Jones argues that the war on terror “serves as a useful starting point to think about more general questions concerning the entwined histories of war and law, their changing character and their complex geographies. Indeed, these post-9/11 years have witnessed an intensification of the relationship between war and law” (Reference Jones2015, 584). While I concur about the significance of the post-9/11 years, the term “intensification” does not capture what is distinctive, internally cohesive, and increasingly autonomous (from IHL) about US warfare in the twenty-first century. Pierre Bourdieu’s conception of the “juridical field” provides a useful heuristic to understand how developments in legal interpretation and warfare have come to constitute a counterterrorism war paradigm.

The practice and the function of interpretation—in this context interpreting various bodies of US federal and international treaty-based laws—aim not only to legitimize and “legalize” specific state practices and policies but also to establish that these preferential interpretations become, as Koskenniemi (Reference Koskenniemi2004, 199) argues, “the universal preference.” The need to engage in legal interpretations is reflective of the US state’s self-identity as law-minded, and the practical effects that result from interpretations “can be distinguished from naked exercises of power only to the extent that they can be presented as the necessary result of a principled interpretation of unanimously accepted texts” (Bourdieu Reference Bourdieu1987, 818).

The intellectual authors of the “new paradigm” were animated, in part, by the alleged “quaintness” (Greenberg and Dratel Reference Greenberg and Dratel2005, 81) of the Geneva Conventions. Their interpretative starting point was the assertion that the “old” rules do not apply to this new kind of war, and they set in motion an interpretative process to rethink the legal rights of the state at war against terror. As Bourdieu writes:

The practical effects of this post-9/11 interpretative process included forging new categories of being—specifically, “unlawful enemy combatants” as neither combatants nor civilians; assigning new meanings to old practices—for example, waterboarding as “not torture” when done by US state agents and contractors; asserting new rationales for violence—such as rebranding extrajudicial execution as a legitimate option in defense of national security and just another warfare tactic that does not abridge the laws of war; and formulating new war crimes by construing acts of terror as violations of military law. These conceptual innovations (and others elaborated in detail below) were done not against but rather through law (Perugini and Gordon Reference Perugini and Gordon2015; Prabhat Reference Prabhat2016). “Law is the quintessential form of the symbolic power of naming that creates the things named…. It confers upon the reality which arises from its classificatory operations the maximum permanence that any social entity has the power to confer upon another, the permanence which we attribute to objects” (Bourdieu Reference Bourdieu1987, 838).

I contend that the accumulation of these interpretative innovations and their transnational influence have come to constitute the counterterrorism war paradigm as a juridical field, which has bearing on how scholars might engage with developments in the relationship between law and war. Yves Dezalay and Mikael Madsen suggest that such a “Bourdieusian turn to reflexive sociology basically implies a double historicization (i.e., a historicization of both the object and the academic construction of that object)” (Reference Dezalay and Madsen2012, 437). This involves both empirical investigation and analysis of legal constructs and their real-world effects and a critical distancing from law’s (and law’s official interpreters’) pretentions to neutrality, autonomy, and universality. Dezalay and Madsen persuasively argue that

Adapting Dezalay and Madsen’s argument to the counterterrorism war paradigm as a juridical field, we would substitute military, security, and strategic interests for “social interests” and replace “class” with a more expressly globalized conception of hegemonic and hierarchical political power. The construction of this—like any new—juridical field (Dezalay and Garth Reference Dezalay, Garth, Sarat and Scheingold2001; Hagan and Levi Reference Hagan and Levi2005; Prabhat Reference Prabhat2016) “is historically contingent and, thus, a social product that needs to be analyzed in light of its historical process of construction” (Dezalay and Madsen Reference Dezalay and Madsen2012, 443). Beyond the obvious significance of 9/11, the historical contingency that informs the development of the counterterrorism war paradigm is the elevation of “operational law”—that is, actual military and security operations coupled with and supported by advice and justifications provided by lawyers.

Michael Smith (Reference Smith, Braverman, Blomley, Delaney and Kedar2014, 152) writes: “Operational legality is fundamentally shaped by strategic considerations; in other words, the mission objectives dictate to a substantial degree what is authorized.” According to Jones (Reference Jones2015, 690), operational law—understood as interpretations of law to comport with and support operational/strategic needs and militarized processes—has come to dominate military doctrine in the United States and Israel as well as in the United Kingdom, Canada, and Australia. Paradigmatically, the elevation of operational law “represents the tip of the international law spear, a space far away from the sites and institutes commonly associated with the treaty making of international law—the UN, ICC, or the International Committee of the Red Cross—but nonetheless working on the same project of defining and rewriting the power and purpose of law in war, albeit from a radically different direction” (Jones Reference Jones2015, 690).

Finally, to support the claim that the construction of a counterterrorism war paradigm has involved not the wholesale disregard for IHL but rather interpretative processes that produce alternative understandings and assertions of what is lawful, we should consider how these interpretative strategies work. Monica Hakimi (Reference Hakimi2018) identifies four strategies used by lawyers and policy makers. First, try to settle the law’s substantive content.

Second, pretend that the law is clear by ignoring conflicting interpretations, or, more precisely, pretend “that the law is what the person who invokes it wants it to be.”

Third, try to identify common principles “that cut across the existing international rules on an issue and then to use those principles to inform decisions when none of the rules is directly on point.” A fourth strategy, common among those who wish to advance a position critical of official interpretations and/or practices, is to demand disclosure of information about security operations and their legal rationales.

The remainder of this article traces US counterterrorism war policies and their legal justifications in somewhat chronological order because there is an incrementalism to interpretative processes of paradigmatic thinking, policy outcomes, and trajectories of legal/interpretative defense and resistance. The juridical field of the counterterrorism war paradigm was forged through these processes.

THE FIRST PHASE OF COUNTERTERRORISM WAR PARADIGMATIC THINKING

The counterterrorism war paradigm was not cut from whole cloth. Rather, it was built and assembled in a piecemeal manner as the strategic and operational objectives and the policies authorized to achieve those objectives evolved.Footnote ⁶ At the outset of the “war on terror,” the original enemies were al-Qaeda, which bore responsibility for the 9/11 attacks, and the Taliban of Afghanistan, which harbored the al-Qaeda leadership and were regarded as complicit in that organization’s ability to attack the United States. Although the war in Afghanistan involved a great deal of killing, capture was the original strategic preference because interrogation would serve as the means to elicit actionable intelligence about elusive, unconventional enemies.

Before the armed conflict in Afghanistan had even started and well before any suspects had been captured, Vice President Dick Cheney (who assumed control of the national security portfolio) and other top officials in the Bush administration convinced themselves that the only way to get information from these enemies would be through coercive means (Mayer Reference Mayer2008; Khalili Reference Khalili2012). Policymaking was driven by presumptions that conventional interrogation methods were unsuited to this unconventional enemy; that coercive interrogation methods were necessary and that this necessity made them, therefore, legitimate; and that terrorists were essentially rightless and thus could be subjected to any form of violence, whether custodial or lethal, that the executive deemed necessary.

The first major building block of the interpretative edifice that would gradually develop into the counterterrorism war paradigm was President Bush’s November 13, 2001 military order titled “Detention, Treatment, and Trial of Certain Non-citizens in the War Against Terrorism.” The novel legal reasoning that went into this order includes the declaration that any noncitizen detained by the US government in the “war on terror” could be prosecuted under military law in a military commission, and that these individuals would have no right “to seek any remedy or maintain any proceeding, directly or indirectly, or to have any such remedy or proceeding sought on the individual’s behalf, in (i) any court of the United States, or any State thereof, (ii) any court of any foreign nation, or (iii) any international tribunal” (Bush Reference Bush2001). The first claim, that nonsoldier enemies accused of terrorist acts could be prosecuted in military commissions, was contradicted by the second claim that the laws of war would afford them no rights or remedies. The underlying strategic objective was clear: the government wanted to detain people incommunicado without offering them any avenue to challenge their detention (Hafetz Reference Hafetz2011). This claimed right to disappear people was tied to an assumption of infallible security knowledge, namely, that anyone who was detained was a terrorist, and this was coupled with an interpretative classification of terrorists as neither prisoners of war nor civilians, who, by this designation, were “outside” the bounds of IHL (Dörmann Reference Dörmann2003). Moreover, by asserting that acts of terror are war crimes and by granting military tribunals “exclusive jurisdiction” over these individuals, the president took the first step in US attempts to rewrite the laws of war. The grant of jurisdiction to military commissions was motivated by the desire to eliminate the option to prosecute terrorist crimes in federal courts, with all their due process protections.

In December 2001, the naval base at Guantánamo Bay was designated as the primary facility for long-term military detention and interrogation. In January 2002, the first prisoners began arriving; many of them had been detained in Afghanistan but some had been captured in other countries and turned over to the United States. In February, on the advice of White House and Justice Department lawyers, President Bush “declared” that the Geneva Conventions are inapplicable to “war on terror.” The forward-looking objective of this declaration was to immunize officials or other state agents from the possibility of future war crimes prosecutions (relying on the idea of no crime without law). Over the following year, the military commission system authorized by the president in his November 2001 order began to take shape. Military lawyers were selected to serve as defense counsel before any detainees were slated for prosecution.

The CIA’s rendition, detention, and interrogation (RDI) program benefited from the territorially unbounded AUMF and the president’s order about the rightlessness of enemies, but it ran on a track separate from that of the military. The CIA targeted “high value” people assumed to be top leaders of terrorist organizations and/or to have valuable intelligence about terrorist plans and operations (Soufan and Freedman Reference Soufan and Freedman2011; Kiriakou and Ruby Reference Kiriakou and Ruby2012; Mitchell and Harlow Reference Mitchell and Harlow2016). The first suspected high value detainee (HVD), Abu Zubaydah, was taken into CIA custody in March 2002, and the agency was authorized to begin using the harsh methods that Cheney and others had envisioned in the aftermath of 9/11. The CIA’s anxiety about the legality of these methods and the possibility of future prosecutions was the trigger for lawyers in the Justice Department’s Office of Legal Counsel (OLC) to reinterpret federal law to characterize the authorized methods as not “torture.” Over the following years an estimated 136 people were held by the CIA in total incommunicado detention as “ghost detainees” in overseas black sites. Others who were kidnapped by or turned over to the CIA were “extraordinarily rendered” (i.e., extralegally transferred) to the security services of foreign countries for interrogation (Singh Reference Singh2013).

LEGAL CHALLENGES TO THE NEW PARADIGM

The paradigmatic aspirations of the president’s order to deprive detainees of any rights, including habeas corpus, and to apply military law to prosecute nonmilitary offenses triggered legal challenges by some American attorneys (Greenberg and Dratel Reference Greenberg and Dratel2008; Resnick Reference Resnick2010).Footnote ⁷ Three key cases, which ultimately were decided by the Supreme Court, repudiated some core elements of the president’s order. The first, Rasul v. Bush, challenged the president’s authority to deprive Guantánamo detainees of any right to challenge their detention (Margulies Reference Margulies2006). The Rasul decision, issued by the Supreme Court in June 2004, recognized that people in military detention could not be held incommunicado indefinitely, and this cracked open the doors of Guantánamo for lawyers who signed on to serve as habeas counsel (Hafetz and Denbeaux Reference Hafetz and Denbeaux2011).

The second case, Hamdan v. Rumsfeld, was mounted by Lt. Cmdr. Charles Swift, who had been assigned as military defense counsel for one of the first detainees to be charged, Salim Hamdan,Footnote ⁸ and was joined by a team of civilian lawyers who challenged the constitutionality of the military commission system. When the Supreme Court decided Hamdan in June 2006, not only did it rule that the commission system was unconstitutional because it had been created by presidential fiat, it also ruled that Common Article 3 of the Geneva Conventions applies to all people detained by the United States—whether in custody of the military or the CIA.

In the third case, Boumediene v. Bush, the Supreme Court ruled in June 2008 that because the United States maintains de facto sovereignty over Guantánamo, the constitutional right to habeas corpus extends there (Hafetz Reference Hafetz2011). However, Boumediene was limited—interpretatively and practically—to detainees held at Guantánamo, not at Bagram (in Afghanistan) or other overseas US detention facilities.

Had the Court’s rulings in these three cases stood uncontested, the new paradigm may have come undone. However, that is not what transpired. Following Rasul, the Bush administration established Combatant Status Review Tribunals (CSRTs) in an attempt to prevent habeas cases from moving into federal courts. Lawyers representing detainees were barred from participating in or assisting their clients in the CSRTs, which were manned by panels of soldiers.Footnote ⁹ To provide some context for subsequent developments, two months prior to the Rasul decision, on April 28, 2004, shocking photos from the Abu Ghraib prison in Iraq were published along with a leaked investigative report by Gen. Antonio Taguba concluding that “wanton” and “systematic” abusive practices authorized for Afghanistan and Guantánamo had migrated to Iraq (Hersh Reference Hersh2004). Over the following months, some of the legal and policy documents produced by government lawyers and officials to authorize incommunicado detention and coercive interrogations became public. These “torture memos” exposed the legal interpretations undergirding the new paradigm and validated the conclusions of Taguba’s scathing report that abuses were systemic (Jaffer and Singh Reference Jaffer and Singh2007).

Yet the torture scandal of 2004 did not trigger a reversal of policy. On the contrary, the Bush administration doubled down, blaming the abuses depicted in the photos at Abu Ghraib on “bad apples” to deflect chain-of-command responsibility while defending the authorization of custodial violence as effective and necessary in the quest for actionable intelligence. As more information about US torture flowed into the public domain through journalistic exposés and human rights reporting, the government’s denial strategies (Cohen Reference Cohen2001) shifted from “literal denial”—we don’t torture—to “euphemistic denial”—what we do is not “torture.” Official denials were fortified by the refusal to authorize a thorough top-down investigation of the interrogation and detention policies and the portrayal of critics as “soft on terror.”

At this pivotal juncture, we see the juridical field taking shape as “the site of a competition for monopoly of the right to determine the law” (Bourdieu Reference Bourdieu1987, 817). In the summer of 2005, Senator John McCain, a torture survivor from the Vietnam War and a member of the Senate Armed Services Committee, became concerned that the authorization of interrogation and detention practices that violate military law was creating disorder and confusion among the ranks and would leave soldiers vulnerable to court-martial. He introduced legislation, known as the McCain Amendment, that would ban all “cruel, inhumane and degrading” treatment of detainees. The amendment set the US Army Field Manual as the standard for any US interrogators. However, Cheney lobbied the Republican-controlled Congress to at least insert a “CIA exception,” which it did. The McCain Amendment passed by an overwhelming majority of 90 to 9. At the same time, however, McCain supported legislation introduced by Senator Lindsey Graham, the Detainee Treatment Act (DTA) of 2005, which incorporated language to deny “non-citizen terrorists” in US custody any access to US courts. This legislation was designed to circumscribe the habeas protections of the Rasul decision as well as to foreclose any avenue for judicial enforcement of the ban on cruel treatment.

In terms of paradigmatic significance, these developments between 2004 and early 2006 reined in the military’s prerogatives to hold prisoners incommunicado and to engage in interrogation and detention practices that violated the Army Field Manual. However, legislative pushback against cruel and inhumane treatment was compromised by the DTA’s jurisdiction stripping to deprive detainees of any remedies for gross violations of international law. Moreover, the political compromise preserving the CIA’s prerogative to continue its own torture program reinforced at least part of the underlying logic of the new paradigm, namely, the inapplicability of law to the treatment of people in CIA custody and the continuation of their status as disappeared in black sites. It should be noted that one of the first substantive setbacks for the CIA’s program was the result of a November 2005 report by the Washington Post that the agency was running black sites in European countries (Priest Reference Priest2005), subsequently revealed by Human Rights Watch to be Poland, Lithuania, and Romania. These revelations forced the CIA to move ghost detainees off the continent. A 2006 investigative report by the Council of Europe proved that the CIA had engaged in one hundred kidnappings in Europe, and a 2007 European Parliament report exposed collusion by some European countries’ security services with the agency’s torture program.

THE PARADIGM SHIFTS

The 2006 Hamdan decision limited the government’s interrogation and detention prerogatives, which led to a broader shift in strategic objectives and operations from capture to kill. The Supreme Court’s recognition that Common Article 3 is binding, customary law that extends to all detainees in US custody and that violations are war crimes forced the Bush administration to stop the CIA’s black site operations. At a press conference on September 6, 2006, Bush publicly acknowledged the existence of black sites and his authorization of “alternative” and “enhanced” interrogation tactics, which—nodding to the interpretative labor of government lawyers—he characterized as “tough,” “safe,” “lawful,” and “necessary.” He announced that fourteen HVDs, including the alleged 9/11 planner Khalid Sheik Mohammad, who had been in CIA custody since 2003, were being transferred from black sites to Guantánamo.

The other major elements of the Hamdan decision produced a decidedly different outcome. To counter the Supreme Court’s ruling that the presidentially created military commissions were unconstitutional, in October 2006 Congress passed the Military Commissions Act (MCA), which reconstituted the commissions and gave legislative sanction for the use of hearsay and of evidence elicited through coercive means. The MCA also provided ex post facto immunity (back to 1997) for any US officials and state agents who violated the Geneva Conventions to block future accountability under the federal War Crimes Act. Finally, the MCA reinforced the jurisdiction stripping of the DTA.

The MCA’s legislative entrenchment of a “right to torture”—a right to rely on tortured statements for prosecutions and continued detentions and to immunize state agents who engaged in, authorized, or abetted torture from accountability—was never undone, and this, more than the previous authorization of torture itself, was paradigmatically significant because it sanctioned legal impunity for torture, which is a flagrant violation of IHL, and it deprived victims of any recourse. Moreover, the combination of continuing secrecy about interrogation and detention past and present, and political defenses of the efficacy and necessity of “enhanced interrogation methods,” the preferred euphemism for torture, contributed to a shift in public opinion toward greater support or acceptance for the use of custodial violence (Greenberg Reference Greenberg2006; Gronke et al. Reference Gronke, Rejali, Drenguis and Hicks2010; Parry Reference Parry2016).

THE PARADIGMATIC SIGNIFIGANCE OF REWRITING THE LAWS OF WAR

Some of the interpretative moves that constituted the first phase (2001–2006) of the counterterrorism war paradigm—foremost, the prerogative to torture and the wholesale inapplicability of IHL—did not survive the Hamdan ruling. What did survive, thanks to the MCA, was the assertion that foreigners accused of terrorist acts could be prosecuted in military commissions (Bravin Reference Bravin2013). To these ends, the MCA reinterpreted the laws of war to codify material support for terrorism and conspiracy as punishable offenses in military commissions to provide a patina of legitimacy for the cases the government planned to prosecute. Thus, the second phase of counterterrorism war paradigmatic thinking involved the interpretative fabrication of new military law offenses whose novelty was captured by the oxymoronic label “domestic humanitarian law” (Deeks Reference Deeks2013).

As Bourdieu suggests, “the practice of interpretation of legal texts is theoretically not an end in itself. It is instead directly aimed at a practical object and is designed to determine practical effects …” (Reference Bourdieu1987, 818). The first case involving these congressionally invented war crimes involved an Australian citizen named David Hicks who had been captured in Afghanistan. Hicks agreed to a politically negotiated plea bargain in 2007 that was pushed through by Cheney to support Australia’s Prime Minister John Howard, who was running for reelection and needed to demonstrate to his citizens that he was doing something to get Hicks out of Guantánamo.

When Hamdan was charged, his lawyers again tried to fight the commissions, but the Supreme Court declined to hear challenges to the MCA. Because Hamdan did not accept a plea bargain, his case went to trial. When the pretrial hearings commenced in February 2008, his lawyers moved to have the case dismissed on the grounds that the activities for which he was charged were not crimes under military law at the time of his capture, and thus violated the ex post facto clause of the Constitution. That challenge failed. At Hamdan’s trial, which was the first to be litigated in the commissions, torture, inevitably, was an issue. Former chief prosecutor Col. Morris Davis—who had quit to protest political interference in the commissions, testified for the defense; he criticized the government for pursuing cases using tortured and other unreliable forms of evidence. In his ruling on defense motions to suppress Hamdan’s self-incriminating statements, the judge, Capt. Keith Allred, agreed to exclude those from the Bagram prison in Afghanistan but not those from Guantánamo, despite the fact that at the latter Hamdan’s abusive treatment included fifty days of sleep deprivation. Hamdan was found guilty of providing material support for terrorism but was acquitted of conspiracy charges. His five-and-a-half-year sentence included time served (he was captured in 2001), and five months later he was repatriated to Yemen. In reprisal for this sentencing outcome, Congress subsequently eliminated time served as an option for individuals found guilty in military commissions. Thus, we can see this case from start to aftermath as “a paradigmatic staging of the symbolic struggle … in which differing, indeed antagonistic world-views confront each other” (Bourdieu Reference Bourdieu1987, 837).

The third and final military commission case during the Bush years was that of Ali al-Bahlul, an unrepentant al-Qaeda propagandist who had made recruitment videos glorifying jihad and urging attacks on US targets. He was charged with conspiracy, providing material support for terrorism, and solicitation of murder (another fabricated war crime). Al-Bahlul boycotted his trial, was found guilty, and was given a life sentence; he remains incarcerated at Guantánamo.

The MCA mandated that every guilty verdict would automatically go through an appeal process at the Court of Military Commission Review, following which either party could further appeal to the US Court of Appeals for the District of Columbia Circuit (DC Circuit Court). The Hamdan and al-Bahlul cases—the first to reach the appeals phase—generated a muddle of conflicting federal court rulings, evincing interpretative disputes that constitute a juridical field in the making. In October 2012, the DC Circuit Court vacated Hamdan’s conviction for providing material support for terrorism, ruling that “consistent with Congress’s stated intent and so as to avoid a serious ex post facto clause issue, we interpret the Military Commissions Act of 2006 not to authorize retroactive prosecution of crimes that were not prohibited as war crimes triable by military commission under U.S. law at the time the conduct occurred.” In July 2014, the DC Circuit Court also struck down al-Bahlul’s convictions for providing material support and solicitation of murder for the same reason, while remanding the conspiracy conviction to the Court of Military Commission Review, which upheld it. Upon appeal, the DC Circuit Court ruled that al-Bahlul could not be convicted of conspiracy for activities that took place prior to the 2006 MCA. The three-judge panel challenged Congress’s “constitutional authority to add conspiracy to the internationally recognized war crimes list that may be tried by military commission” (Eachambadi Reference Eachambadi2017). That decision was appealed by the government and overturned in a split decision by an en banc panel whose majority concluded that “the 2006 MCA is unambiguous in its intent to authorize retroactive prosecution for the crimes enumerated in the statute—regardless of their pre-existing law-of-war status” (Belczyk Reference Belczyk2014). In October 2017, the Supreme Court denied certiorari, thus preserving the decision that the fabrication of war crimes is a legitimate legislative prerogative.

THE OBAMA ADMINISTRATION’S CONTRIBUTIONS TO THE PARADIGM

As a senator, Barack Obama was a vocal critic of Guantánamo and he voted against the 2006 MCA. The day after he was sworn in as president in January 2009, he issued three executive orders, one requiring that all interrogations must adhere to the 2006 (revised) Army Field Manual for Human Intelligence Collector Operations and canceling the CIA’s authority to engage in interrogation and detention operations, a second promising to close Guantánamo within one year, and a third suspending the military commissions. Over the following months, however, he made a sharp about-face on the matter of the commissions.

On May 21, 2009, Obama delivered a major speech on security and legal issues at the National Archives. He used the occasion to rebut partisan criticisms of his cancellation of the torture program,Footnote ¹⁰ as well as to explain to the nation the “legal mess” he had inherited from the previous administration and the challenges of dealing with detainees who remained at Guantánamo.Footnote ¹¹ He announced that those charged with acts of terrorism that are proscribed by federal law would be prosecuted in federal courts, while others accused of war crimes would be prosecuted in the military commissions, thereby rescinding his January suspension. But he promised to reform the commissions to exclude evidence elicited through torture or cruel, inhumane, and degrading treatment, and indeed, a revised MCA was passed by Congress and signed into law in October 2009; however, the 2009 MCA did not eliminate the ex post facto immunity for war crimes in the 2006 version. The toughest problem, according to Obama, was what to do with detainees who cannot be prosecuted (for lack of court-worthy evidence) but who also cannot be released because they might continue to pose a security threat. He suggested that some arrangement for permanent detention without trial was being considered. Several months later, his administration decided not to propose new legislation but rather to follow its predecessor in claiming that in passing the AUMF Congress had endorsed indefinite detention; this was further confirmed in the 2010 National Security Strategy.

The Obama administration’s plan to prosecute five Guantánamo detainees for the 9/11 attacks in federal court crashed on the shoals of domestic politics by the end of 2009 (Mayer Reference Mayer2010),Footnote ¹² leaving the military commissions as the only option and derailing plans to close Guantánamo. Obama came to own the legal mess he had inherited, and his administration advanced the interpretative project of rewriting of the laws of war.

The first person to be prosecuted in the military commissions under the Obama administration was Omar Khadr, a Canadian citizen who was fifteen years old when he was captured in Afghanistan in July 2002 and sixteen when he was transferred to Guantánamo. The paradigmatic significance of the Khadr case cannot be overstated. The three most significant issues were: the legitimacy of prosecuting a person for war crimes who was a child at the time of arrest; the validity of government evidence that the defense contended was derived from torture; and the acceptability of fabricated war crimes. Khadr was charged with murder in violation of the laws of war for allegedly throwing the grenade that killed Special Forces Sgt. Christopher Speer during a firefight in Afghanistan. He was also charged with attempted murder for allegedly making improvised explosive devices that might have been planted along Afghan roads to attack US and allied forces. However, even if Khadr did throw the grenade that killed Sgt. Speer, a soldier is not a “protected person” in the context of battle under IHL and therefore such killing is not an internationally recognized war crime. If Khadr was prosecutable for this killing because he was an “unprivileged belligerent” (the Obama administration’s semantic alteration of “unlawful enemy combatant”), by the same measure CIA agents, who are nonmilitary and thus unprivileged, could be charged by a foreign government with murder in violation of the laws of war for operating killer drones. As the case against Khadr was being developed, the State and Defense Departments disagreed over this issue. State argued in favor of restoring the US position to the pre-9/11 interpretation of IHL to rectify the contradictions and bring the US position back into line with international consensus. Had State prevailed, the Pentagon would not have had grounds for pressing charges against Khadr in the military commissions. Thus, the Obama administration contributed to rewriting the laws of war, in part, to prosecute Khadr (Glazier Reference Glazier2010).

During the pretrial phase of Khadr’s trial, the judge, Col. Patrick Parrish, refused to exclude any of the statements Khadr had made at either Bagram or Guantánamo, despite the presentation of abundant evidence of torture. The broader implication of this decision in the “posttorture” era is that the responsibility to determine whether someone was tortured, what constitutes torture, and whether, if torture occurred, it would invalidate government evidence now falls squarely on the shoulders of military commission judges. In October 2010, Khadr pled guilty to all the charges in a complex deal that involved continued imprisonment at Guantánamo for part of his sentence and then repatriation and further imprisonment in Canada.

THE PARADIGMATIC SIGNIFICANCE OF UNACCOUNTABILITY FOR TORTURE

While President Obama is justly credited for ending the torture program, his decision not to prosecute those responsible for this gross crime—essentially, to immunize them through inaction (Human Rights Watch 2011)—was another contribution to the development of the counterterrorism war paradigm. Obama justified this refusal to pursue justice with the facile mantra that it was time for the nation to “look forward, not backward.” Critical to his decision were the torture memos produced by government lawyers of the previous administration because, he maintained, those who had authorized or engaged in torture had thought or been told that what they were doing was “legal” and therefore they had “acted in good faith.” Thus, Obama gave these memos the very “golden shield” power their authors had intended. Moreover, the Obama administration, like its predecessor, utilized diplomatic pressure to thwart the pursuit of justice and accountability for US torture in other venues, mainly in Europe (Hajjar Reference Hajjar, Sarat and Hussein2010, Reference Hajjar2012b), thus imposing the counterterrorism war paradigm on countries that did not subscribe to its logic and would have wanted to enforce the law and fulfill their commitments to IHL. This is the kind of “hegemonic international law” behavior that Alvarez (Reference Alvarez2003) and Koskenniemi (Reference Koskenniemi2004) describe.

The cancellation of the CIA’s torture program did not negate its existence, for the past cannot be expunged. However, that past was kept hidden from the public through the Obama administration’s resolute defense of the classified nature of the now-defunct program. This secrecy has contributed to the misconceptions or ignorance of both American politicians and the public about the illegality, ineffectiveness, and strategic costs of torture (Johnson, Mora, and Schmidt Reference Johnson, Mora and Schmidt2016). This preservation of secrecy also has severely retarded progress in military commission cases against people previously held and tortured by the CIA. These individuals are literally the embodiment of classified crimes of state because their own memories of what was done to them are treated as state secrets by the government (Hawkins Reference Hawkins2013). They cannot communicate their truths to anyone who does not have top security clearance and some direct, authorized relation to the military commissions. And even those who do, notably their defense teams, are gagged from ever speaking about it publicly or from telling their clients anything that is classified, including about themselves.

The military commission case against Khalid Sheikh Mohammad and four other individuals accused of responsibility for the 9/11 attacks as well as the now-stalled case against ‘Abd al-Rahim al-Nashiri, who is accused of orchestrating the 2000 bombing of the USS Cole off the coast of Yemen, have dragged on for years in the pretrial phase (on Nashiri, see Vladek Reference Vladek2018). This drag is largely due to the government’s prioritized commitment to keep the CIA’s secrets secret (Hajjar Reference Hajjar2014, Reference Hajjar2018a). Consequently, every witness and every piece of evidence pertinent to the capture, interrogation, and conditions of detention of those on trial must be litigated, putting the government’s determination to preserve secrecy in direct conflict with due process.

The most comprehensive investigation of the CIA’s RDI program was launched in March 2009 by the Senate Select Committee on Intelligence (SSCI). The committee reviewed over six million pages of the agency’s own documents about what had been done to people in black sites and what kinds of intelligence the program produced. The report, which was completed in December 2012, delivered four general and significant findings: (1) the CIA’s “enhanced interrogation techniques” were ineffective in producing accurate intelligence; (2) the CIA provided extensive inaccurate information about the operation of the program and its effectiveness to policy makers and the public; (3) the CIA’s management of the program was inadequate and deeply flawed; and (4) the program was far more brutal than the CIA represented to the legislators charged with oversight. Because these findings were so condemnatory, the CIA opposed release of the SSCI report. Over the next two years, a battle between Congress and the CIA over the fate of the SSCI report ensued (Ackerman Reference Ackerman2016a, Reference Ackerman2016b, Reference Ackerman2016c), during which the White House de facto sided with the agency by resisting calls to make it public. Finally, in December 2014, a heavily redacted 525-page executive summary was released, while the body of the six-thousand-plus-page report remains classified.

Although the SSCI investigation enjoyed bipartisan support when it began, by the time the report was completed, many Republican senators, including Richard Burr, who took over as chair of the SSCI in 2010, had become opponents of it, thus turning this authoritative account of a grim chapter of US history into a partisan issue. As Obama’s second term was nearing its end, Republican leaders announced their plan to have every copy of the SSCI report destroyed. They succeeded in their request to have most copies that had been sent to executive branch departments returned to the committee unopened. During his last days in office, Obama ordered that his copy be preserved in the presidential archives, but he ordered that it should remain classified and access to it restricted for the maximum time allowed by law: twelve years. Meanwhile, access to the report for the defense lawyers in the 9/11 cases in the military commissions continues to be litigated.

These accumulated events and developments operating to deny and obstruct accountability for the crime of torture and to prevent public access to information about its illegality and adverse effects on national security serve, functionally, to preserve the legitimacy of torture within the United States, thus fortifying the counterterrorism war paradigm. This legitimacy was vividly demonstrated during the 2016 election season when Republican candidate Donald Trump ran for president and won on a platform that included a pledge to resurrect the torture program. Beyond the domestic implications of this legitimization of torture, the record of governmentally enforced unaccountability has adverse paradigmatic significance for antitorture norms and the enforceability of international law on a global scale.

THE PARADIGMATIC SIGNIFICANCE OF TARGETED KILLING

The arming of unmanned aerial vehicles (i.e., drones) in 2001 coincided with the start of the “war on terror.” While the CIA had been operating surveillance drones over Afghanistan since 2000, on September 18, 2001, the day after President Bush authorized the agency’s new kill-or-capture mission, they sent an armed Predator, launched from Uzbekistan, into Afghan airspace in search of al-Qaeda leader Osama bin Laden and other 9/11 plotters. The first drone strike in Afghanistan occurred in February 2002, targeting a group of people whose identities were unknown but that included a “tall man” who was thought to be, possibly, Osama bin Laden; he was not (Sifton Reference Sifton2012).

The first targeted killing operation outside of Afghanistan occurred on November 3, 2002, when a CIA-operated Predator launched from a base in Djibouti shot a Hellfire missile into a car carrying six people in a rural area of Yemen. This domestic self-licensing of the claimed right to execute individuals outside of the context of combat and not on any battlefield in a literal sense, not to mention in a country where the United States is not officially at war, signaled another new policy option for this counterterrorism war. The target of that operation was Qa’id Salim Sinan al-Harithi, alleged to have been involved in the 2000 bombing of the USS Cole (Hersh Reference Hersh2002). One of the other dead passengers, Kamal Darwish, was a US citizen whose killing was deemed collateral damage because he was not the target. Afterward, officials justified the operation as a legal military option under the AUMF because al-Harithi was a suspected member of al-Qaeda and because his arrest was not possible. However, the UN Special Rapporteur for Extrajudicial, Summary or Arbitrary Executions (2003, para. 37) concluded that the Yemen strike was illegal because it “constitutes a clear case of extrajudicial killing.”

To put the policy of targeted killing into broader context of the developing counterterrorism war paradigm, one must consider interpretative moves that have led to a vanishing battlefield. Frédéric Mégret (Reference Mégret2012, 135) argues that it is necessary to appreciate “just how radical the War on Terror’s impact on the structuring concepts of the laws of war is. The War on Terror essentially combines all the deconstructing effects that have taken their toll on the idea of the battlefield in the 20th Century, to the point of making it barely recognizable.” Further, “there is no doubt that a deliberate attempt [by the US government] to manipulate what constitutes the battlefield and to transcend it in ways that liberate rather than constrain violence has been at the heart of the response to the terror attacks of 9/11.”

Throughout Bush’s two terms in office, he approved approximately fifty drone strikes, most in Pakistan and conducted by the CIA (Mayer Reference Mayer2009, 38). Until mid-2006, capture for interrogation and detention remained the primary strategic objective. The Hamdan decision decisively limited interrogation options, and this diminished the strategic appeal of capture and detention. Following the transfer of the fourteen HVDs from CIA custody to Guantánamo in September 2006, only one other person was sent to that facility, in 2008. After Hamdan, targeted killing supplanted detention to become the primary strategic and operational preference for the “war on terror.” In Bush’s last year in office, there was a 94 percent increase in drone strikes over the year before (Shachtman Reference Shachtman2009). After Obama took office, targeted killing by the CIA and the military’s Joint Special Operations Command (JSOC), each running on separate tracks and pursuing its own list of targets, escalated dramatically in terms of the number of strikes per month and the geographic scope that soon extended to countries in East and North Africa and the Pacific (Alston Reference Alston2011; McKelvey Reference McKelvey2011; Cline Reference Cline2013).

On January 27, 2010, the Washington Post reported that at least three citizens had been designated for extrajudicial execution (Priest Reference Priest2010). One name on the list was Anwar al-Awlaki, an American-born Muslim cleric who had moved to Yemen and was described by the government as a leader of al-Qaeda in the Arabian Peninsula (Johnsen Reference Johnsen2013). The revelation that US citizens were on a government kill list raised new questions and criticisms about this highly secretive program. Obama administration officials were dispatched to make public statements about the legality and efficacy of targeted killing in general terms while maintaining that the planning and conduct of such operations are classified (Anderson Reference Anderson2012). For example, State Department Legal Advisor Harold Koh, who had criticized drone strikes as extrajudicial killings prior to joining the Obama administration (McKelvey Reference McKelvey2012), extolled their legality during his time in office. In a speech to the American Society of International Law, Koh (Reference Koh2010) stated: “[I]n this ongoing armed conflict, the United States has the authority under international law, and the responsibility to its citizens, to use force, including lethal force, to defend itself, including by targeting persons such as high-level al-Qaeda leaders who are planning attacks.”

The most celebrated targeted killing operation occurred on May 1, 2011. In a joint CIA-JSOC operation, a team of Navy Seals raided the compound in the outskirts of the central Pakistan town of Abbottabad where Osama bin Laden was hiding and killed him. Most law of war experts endorsed the legality of this operation because bin Laden was regarded as a legitimate military target (Hajjar Reference Hajjar2012a). Five days later, the United States launched a drone strike targeting al-Awlaki in Yemen, which failed to kill him. However, on September 30, a joint CIA-JSOC drone strike killed al-Awlaki and another US citizen, Samir Khan, along with two others. As Obama had done after the killing of bin Laden, he made a public address declaring that this lethal attack had dealt a “major blow” to al-Qaeda. Two weeks later, another drone attack in Yemen killed al-Awlaki’s sixteen-year-old son ‘Abd al-Rahman, his son’s teenage cousin, and five others while they were dining in an open-air restaurant.

On October 8—between the killings of the two al-Awlakis—the New York Times published an exposé (Savage Reference Savage2011) about the contents of a secret OLC memo to the Defense Department that had been authored in 2010. The Times reported that the legal analysis “concluded that Mr. Awlaki could be legally killed, if it was not feasible to capture him, because intelligence agencies said he was taking part in the war between the United States and Al Qaeda and posed a significant threat to Americans, as well as because Yemeni authorities were unable or unwilling to stop him.” Critics pointed out that reliance on the forward-looking principle of imminence, which was key to the justification for killing al-Awlaki, was contradicted by the fact that the OLC’s 2010 memo appeared to be a standing order of execution.

Although targeted killing became the strategic and operational centerpiece of the Obama administration’s counterterrorism war and was politically popular domestically, the legality of the drone program was by no means settled (Strawser Reference Strawser2014; Chamayou Reference Chamayou2015). Attorney General Eric Holder delivered a national security speech (Reference Holder2012) in which he addressed critics of the targeted killing policy and the execution of al-Awlaki:

The New York Times (Becker and Shane Reference Becker and Shane2012) and the Daily Beast (Klaidman Reference Klaidman2012) published exposés revealing details about this ostensible “due process.” According to the Times, “Mr. Obama has placed himself at the helm of a top secret ‘nominations’ process to designate terrorists for kill or capture, of which the capture part has become largely theoretical.” Both articles describe “personality strikes,” which target specific individuals, and “signature strikes,” which target “groups of men who bear certain signatures, or defining characteristics associated with terrorist activity, but whose identities aren’t known.” Both articles also explain the administration’s method for deflecting criticism of civilian casualties by counting all military-age males in a strike zone as combatants “unless there is explicit intelligence posthumously proving them innocent” (Becker and Shane Reference Becker and Shane2012). This assertion or assumption that anyone killed is a terrorist or militant (unless posthumously cleared) and that the killing itself, even if done remotely, is a military “engagement”Footnote ¹³ is clearly reflected in the term used to describe casualties: “enemy killed in action” (Devereaux Reference Devereaux2015; see also Junod Reference Junod2012; Heller Reference Heller2013). This kind of executive assurance and unchecked power to execute people and claim each killing a “war on terror” victory is a paradigmatic continuation from the early Bush years when anyone detained was a terrorist or militant who, the government claimed, had been “taken off the battlefield.”Footnote ¹⁴

Part of the paradigmatic significance of the targeted killing policy as it developed during the Obama administration is the asserted right to engage in extrajudicial executions as a matter of law, to insist that the program is legitimately classified and that drone strikes are “surgical” and “precise” despite evidence of significant civilian casualties (Cavallaro, Sonnenberg, and Knuckey Reference Cavallaro, Sonnenberg and Knuckey2012; Human Rights Watch 2013; Ackerman Reference Ackerman2014a; Serle Reference Serle2014; Kahn and Gopal Reference Kahn and Gopal2017). The official line about targeted killing has tended to emphasize a common set of points: these operations constitute a legitimate form of national self-defense and therefore comport with the laws of war; using drones for remote killing operations is just another way of waging war; the AUMF permits the waging of this geographically unbounded war; the intelligence upon which targeting decisions are based, while entirely secret, is reliable;Footnote ¹⁵ and national security is enhanced through these operations. The grounding justification is that drones are a technological asset used judiciously to thwart imminent threats. Indeed, every government has a right to defend itself and its citizens against an imminent threat. In this context, however, official assessments of both the imminence and the detailed nature of a threat are classified. According to a Justice Department white paper about the drone program that was leaked to NBC News (Isikoff Reference Isikoff2013), the government reinterpreted the meaning of imminence to liberate itself from the requirement that lethality be a last option: “The condition that an operational leader present an ‘imminent’ threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.” Even by this expanded definition, the escalating number and geographical widening of strikes would suggest that if the government’s justification for each strike is accurate, threats of an imminent nature are on the rise, thus begging the question of how effective drone warfare is in achieving the stated strategic objective of degrading and destroying terrorist organizations.

In a second major national security speech on May 23, 2013, at the National Defense University, Obama addressed the policy of targeted killing. He announced that his administration was institutionalizing clearer standards and procedures, although the details would remain classified (Savage and Baker Reference Savage and Baker2013). One such standard was the “near certainty” requirement that no civilian bystanders would be killed, and another was that targets should pose a “continuing and imminent threat.” He also announced the plan to shift control of most drone strikes from the CIA to the military to serve his administration’s goal of deparamilitarizing the civilian agency. That shift, however, was opposed by the CIA and blocked by Congress (Miller Reference Miller2014).

The new standards and procedures put forward in the Presidential Policy Guidance (White House 2013) exemplify the interpretative labor that goes into trying to present targeted killing—as carried out by the United States—as legal. When Donald Trump took office in 2017, he inherited the counterterrorism war paradigm in which targeted killing is the strategic and operational centerpiece. In a security policy speech on August 21, 2017, Trump stated: “The killers need to know they have nowhere to hide, that no place is beyond the reach of American might and American arms. Retribution will be fast and powerful” (Davis and Landler Reference Davis and Landler2017). The New York Times reported that the Trump administration would institute changes “primarily aimed at making much of the ‘bureaucracy’ created by Mr. Obama’s 2013 rules … ‘disappear’” (Savage and Schmitt Reference Savage and Schmitt2017). Specifically, the Trump administration relaxed the rule limiting targeting to high-level militants who are deemed to pose a continuing and imminent threat and eliminated the high-level vetting process in order to give JSOC and the CIA a freer rein. This “disappearing” of rules and restrictions could be regarded as an assertion that the rules themselves are not legal—or at least not legally binding, or, depending on whether the Trump administration even bothers to engage in interpretative labor, that it is unnecessary to cultivate the appearance of the legality of the program at all (Koh Reference Koh2017).

LEGAL CHALLENGES TO TARGETED KILLING

The unsettled and contentious legality of US targeting policies even as the practice continues to escalate and geographically expand exemplifies the interpretative disputes that transpire in a juridical field (Haque Reference Haque2018a). These disputes include litigation; targeted killing has been the focus of a handful of cases to challenge the state’s right to engage in what opponents regard as extrajudicial executions. Unlike the Bush-era cases pertaining to interrogation and detention in which landmark Supreme Court rulings clipped some of the government’s asserted prerogatives, US courts thus far have avoided rendering authoritative rulings that address the question of whether targeted killing is legal—but also have not ruled that it is illegal.

The first legal challenge followed the Washington Post revelation that US citizens were on a kill list. The American Civil Liberties Union (ACLU) and the Center for Constitutional Rights (CCR) brought a case against the government on behalf of Nasser al-Awlaki to challenge the president’s authority to extrajudicially execute a citizen—his son Anwar. On December 7, 2010, the court dismissed the case on grounds that the senior al-Awlaki lacked standing because the government was not trying to kill him, noting that the legality of the drone program is a “political question” that falls under the purview of the executive branch and Congress.

The following year, after Anwar al-Awlaki, his teenage son ‘Abd al-Rahman, and Samir Khan were killed, the ACLU and CCR filed a civil suit on behalf of Nasser al-Awlaki and Sarah Khan (mother of Samir) against four officials who were atop the chain of command at the time of the strikes. The citizenship status of the three dead Americans provided the opening to seek judicial review for deprivation of life without due process. This civil litigation marked the first attempt to adjudicate the meaning of “direct participation in hostilities” and “imminent threat” in relation to the policy of targeted killing. (In 2006, the Israeli High Court of Justice had issued a ruling in Public Committee against Torture in Israel v. Government of Israel (HCJ 769/02 (2006) (Isr.)) that raised similar questions, finding that Israel’s policy was legal—or not per se illegal—as long as the practice comported with IHL principles of proportionality and distinction.) On April 4, 2014, the court, deferring to the government’s national security arguments, dismissed the case, finding that the victims’ constitutional rights were not violated but leaving the juridical questions unanswered. The petitioners decided not to appeal because they deemed the pursuit of justice in US courts to be futile.

A second avenue of litigation relating to targeted killing is Freedom of Information Act lawsuits to publicize information about the program—including the most basic yet classified aspect, targeting criteria—and intelligence reports produced prior to and following individual strikes. These cases demonstrate the fourth interpretative strategy identified by Hakimi (Reference Hakimi2018) to demand disclosure of information about security operations and their legal rationales. After the operations that killed the al-Awlakis and Khan, the ACLU sued the government for records and materials related to the listing or killing of citizens. That case was joined with a New York Times lawsuit seeking similar information. On January 3, 2013, the District Court for the Southern District of New York dismissed the case, albeit with some judicial hand-wringing:

However, the following year, the Second Circuit Court of Appeals overturned the district court’s decision to dismiss the case, reasoning that officials had made so many statements about the legality of the program that it amounted to a waiver of classification for the OLC memo that provided the legal rationale to kill Anwar al-Awlaki. In July 2014, when the memo was finally released, the eleven-page section laying out the intelligence community’s assessment of al-Awlaki’s role in relation to terrorism remained redacted in its entirety (Jaffer Reference Jaffer2014). According to the editorial board of the New York Times (2014): “[T]he memo turns out to be a slapdash pastiche of legal theories—some based on obscure interpretations of British and Israeli law—that was clearly tailored to the desired result. Perhaps the administration held out so long to avoid exposing the thin foundation on which it based such a momentous decision” (see also Ackerman Reference Ackerman2014b; Cole Reference Cole2014; Junod Reference Junod2014).

The publication of this OLC memo did nothing to abridge the continuing secrecy surrounding the targeted killing policy, nor did it inspire US courts or Congress to interject their own determination of the legality of the program. This inaction spurred several domestic initiatives designed to articulate the legal issues at stake. The New York City Bar Association Committee on International Law (2014) and the Stimson Center (2014) both published reports on targeted killing by drones. The former report is devoted to analyzing targeted killing in relation to international law. The executive summary notes that factors contributing to the complexity of these issues include the lack of “controlling authority for international law,” the fact that there is no obvious international court to resolve or adjudicate the issues, and the secrecy surrounding drone warfare and the legal justifications for targeted killing. The Stimson Center report highlights the significance of lethal drone technology. According to its executive summary, the capacity to kill remotely and without any risk to US forces “has tempted the United States to engage in a largely covert campaign of targeted killing, creating, in effect, a ‘secret war’ governed by secret law … and [notes] the potential implications this has for domestic and international rule of law, especially if other states—including many not known for their human rights records—mimic US precedents” (Stimson Center 2014, 9–10). Among the concerns raised in the Stimson Center report are the “erosion of sovereignty norms” because the United States asserts the right to engage in military operations outside of “hot battlefields” and sometimes without the approval or knowledge of states where attacks are launched; “blowback” in the form of increasing anti-US sentiment that may serve as a recruitment tool for hostile organizations; and the continuing lack of governmental transparency, including in the criteria for determining who is targetable (Knuckey Reference Knuckey2014a). Jameel Jaffer (Reference Jaffer2016, 20) elaborates on this critique:

Three main factors illustrate and intensify the paradigmatic significance of US drone warfare and targeted killing. First, these types of lethal operations have become the mainstay of US counterterrorism policy, and there appears to be no effective domestic oversight—neither judicial nor congressional—to rein in executive branch discretion. Second, the unchecked right to kill anyone on the basis of secret criteria, intelligence, and law contravenes and menaces IHL rules and norms of distinction and civilian immunity, and this is compounded by the nature of the remote technology itself, which makes accountability for IHL violations difficult to determine and nearly impossible to pursue. Third, the international proliferation of drone technology and the prevalence of conflicts that many governments define as their own counterterrorism wars threaten to make US-style claims about the legality and necessity of targeted killing more broadly acceptable and to tempt other states to follow suit.

CONCLUSION: WHAT IS LEGAL IN WAR?

“The power of the law is special” (Bourdieu Reference Bourdieu1987, 843). The overarching purpose of IHL is to balance legitimate military objectives with humanitarian considerations in the context of armed conflict. At the turn of the twenty-first century, the rules and norms of IHL were universally accepted as customary international law—every government in the world had signed or acceded to the Geneva Conventions—notwithstanding disagreements over the extent of their applicability in asymmetric wars. But even in unconventional conflicts, as a matter of law the prohibition of torture and extrajudicial executions was undisputed (i.e., they were jus cogens norms), despite their prevalence in practice. Following the 9/11 terrorist attacks, US officials chose to disengage from IHL rules and norms to wage the “war on terror.” This manifested not as outright rejection but rather as a reinterpretation of the state’s rights in a self-serving and one-sided conversation to “legalize” policies of torture and targeted killing that the executive branch deemed strategically and operationally necessary (Frankenberg Reference Frankenberg2008; Kutz Reference Kutz2014).

The first step in this reinterpretative project was to override the core distinction between combatants (i.e., soldiers) and civilians. The Bush administration created a novel category, “unlawful enemy combatants,” in order to assert their rightlessness and lack of standing under IHL. While the authorization of torture and other forms of deliberate custodial abuse as well as protracted incommunicado detention did not survive challenges, the contralegal notion of rightless enemies has endured, now into a third administration. This is evident in a number of policies that have not succumbed to challenges, including the continued indefinite detention without trial of twenty-six prisoners (as of September 2018) at Guantánamo (Rosenberg Reference Rosenberg2018); the court-accepted denial of the right of habeas corpus for prisoners held at Bagram and other offshore detention facilities; and the classification of all those killed by drones or other types of targeted killing operations as presumptive enemies killed in action, which further erodes the principles of distinction and civilian immunity.

This reinterpretative process, which developed over the years since 2001 into a full-fledged counterterrorism war paradigm, has been a bold deviation from international consensus about what is lawful in the conduct of war and armed conflict. The rationales undergirding the paradigm have been concretized domestically by the passage and application of laws inventing new war crimes and others that serve to immunize officials and state agents from accountability for IHL violations. The domestic entrenchment of this paradigm of rightless enemies and unaccountable officials has had direct implications overseas as well, most obviously in the ability of the US government to use its diplomatic power and political influence to thwart the pursuit of justice for victims of illegal policies and accountability for perpetrators in foreign legal systems.

These reinterpretations that have come to compose the legal framework for the counterterrorism war paradigm have not yet garnered international credibility, let alone ripened into custom. On the contrary, they have been criticized by leading experts of international law, and there have been some significant examples of international pushback. Together, these contestations to shape or subvert a juridical field invite the kind of Bourdieusian approach that “allows for an analysis of the frontier of law, a frontier where the geneses of law are once again unfolding” (Dezalay and Madsen Reference Dezalay and Madsen2012, 439).

In an October 2012 speech at Harvard Law School, Ben Emmerson, then-UN Special Rapporteur on Counterterrorism and Human Rights, stated:

In January 2013, Emmerson and Christof Heyns, then-UN Special Rapporteur for Extra-judicial, Arbitrary or Summary Executions, launched an investigation into drone attacks and other forms of targeted killings in which civilian casualties were alleged to have occurred. This investigation, which drew on experts from several countries, produced a final report that was submitted to the UN Human Rights Council (Emmerson Reference Emmerson2014). The report offered two main recommendations: “First, that the states which conducted any of the 30 strikes [examined in the study] publicly explain them and disclose the results of any fact-finding inquiries, and that states on whose territories the strikes took place ‘provide as much information as possible’ about them. Second, that the Human Rights Council should set-up a panel of experts to discuss and report on the legal issues raised by the use of drones for targeted killings” (Knuckey Reference Knuckey2014b).

Around the same time, the European Parliament (2014) passed a resolution by a vote of 534 to forty-nine condemning US drone strikes and calling on European Union member states to “oppose and ban the practice of extrajudicial targeted killings [and] ensure that the member states, in conformity with their legal obligations, do not perpetrate unlawful targeted killings or facilitate such killings by other states.”

On November 3, 2017, the Chief Prosecutor of the International Criminal Court (ICC), Fatou Bensouda, asked for authorization to commence an investigation into war crimes and crimes against humanity in Afghanistan that would focus on US military and CIA personnel, as well as Taliban and Afghan officials; the investigation would include torture, ill-treatment, and black sites. Bensouda’s preliminary investigation, completed the previous year, found that the alleged crimes “were not the abuses of a few isolated individuals,” but rather were “part of approved interrogation techniques in an attempt to extract ‘actionable intelligence’ from detainees,” adding that there was “reason to believe” that crimes were “committed in the furtherance of a policy or policies … which would support US objectives in the conflict of Afghanistan” (Cohn Reference Cohn2017).

Although the United States is not a signatory to the Rome Statute that established the ICC,Footnote ¹⁶ Afghanistan is. The principle of complementarity enshrined in the Rome Statute aims to privilege the most suitable jurisdiction for the pursuit of justice for gross crimes (i.e., the legal system where the crimes took place and/or that of the perpetrators). If, however, those crimes are not investigated and prosecuted in a more suitable jurisdiction, the ICC serves as a venue of last resort to foreclose the possibility of impunity. Therefore, the ICC can assert jurisdiction over these alleged crimes because the Afghan legal system is unable or unwilling to pursue justice and the US government has failed to do so. In response to Bensouda’s initiative, on September 18, 2018, National Security Advisor John Bolton delivered a speech in which he denounced the ICC as “fundamentally illegitimate” and the pending investigation as “an assault on the constitutional rights of the American people and the sovereignty of the United States.” He laid out the Trump administration’s plans to retaliate against the ICC. “We will ban its judges and prosecutors from entering the United States. We will sanction their funds in the US financial system, and we will prosecute them in the US criminal system. We will do the same for any company or state that assists an ICC investigation of Americans” (Bolton Reference Bolton2018).

While it is unlikely, for geopolitical reasons, that US officials or state agents will ever be brought to justice for gross crimes in the ICC, even the request for an investigation and the preliminary findings that crimes have occurred and have gone unpunished constitute an international law–based repudiation of the unaccountability dimension of the counterterrorism war paradigm. Moreover, this initiative may inspire other efforts to enforce international law and hold violators to account (Hajjar Reference Hajjar, Anderson and Nussbaum2018b; Haque Reference Haque2018b). For example, it might breathe new life into dormant cases against US officials in European courts that were derailed by diplomatic pressure. At minimum, the recognition that US violations of IHL are crimes and the illegitimacy and fragility of impunity may have a deterrent effect on the future behavior of other governments that would be tempted to contemplate a similar course.

Indeed, one of the lessons to be learned from the US record of torture and targeted killing in the “war on terror” is that the counterterrorism war paradigm is a menace to IHL. Most allied governments have refused to accept or condone the legitimacy of these policy options or the legal justifications assembled to legitimize the counterterrorism war paradigm. Recent developments to enforce the law and pursue accountability may have an emboldening effect on governments that are committed to defending the international law–based architecture of humanitarianism. In any case, the counterterrorism war paradigm as a juridical field remains the site of transnational contestations and it has not yet superseded or supplanted the humanitarian paradigm.