Document Type

Article

Publication Date

2010

Abstract

As the war on terrorism approaches its second decade, the open-ended nature of the 2001 Authorization for the Use of Military Force (AUMF) has given rise to the legal question of when, and how, the conflict will end. The indeterminate nature of the conflict has raised fears that the war powers will continue to be exercised indefinitely-a prospect noted with concern by the Supreme Court in Boumediene v. Bush. The prevailing view among legal scholars is that under existing precedents, the AUMF and the concomitant war powers will continue indefinitely in force until the political branches officially declare the conflict to have ended. This Note argues that this binary, "on/off' model of conflict termination is ill-adapted to a war against a rapidly evolving, amorphous terrorist threat. Contrary to the monolithic conception of "terrorism" relied upon by many legal scholars, the nature and structure of the terrorist threat are disputed within the counterterrorism community. Some analysts argue that the primary terrorist threat to the United States emanates from the hierarchically organized "core" al Qaeda based in the Pakistani tribal areas; others, from a decentralized "leaderless jihad" conducted by self-directed homegrown terrorists. This Note uses this debate, together with recent historical studies analyzing how terrorist groups end, as a lens through which to demonstrate how the amorphous, evolving nature of the al Qaeda threat undermines the prevailing on/off model of the legal end of the war on terrorism. It concludes by suggesting principles for constructing a more apt legal model of how and when the war on terrorism, and the legal authorities for fighting it, will come to an end.

Comments

This article originally appeared in 110 Colum. L. Rev. 1865 (2010). Reprinted by permission.

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