A month or so ago, then-DOD General Counsel Jeh Johnson delivered a speech which raised the intriguing possibility that the so-called “War on Terror” might possibly have an expiration date attached. The key passages were as follows (footnotes omitted):
I do believe that on the present course, there will come a tipping point – a tipping point at which so many of the leaders and operatives of al Qaeda and its affiliates have been killed or captured, and the group is no longer able to attempt or launch a strategic attack against the United States, such that al Qaeda as we know it, the organization that our Congress authorized the military to pursue in 2001, has been effectively destroyed.
At that point, we must be able to say to ourselves that our efforts should no longer be considered an “armed conflict” against al Qaeda and its associated forces . . . .
At that point we will also need to face the question of what to do with any members of al Qaeda who still remain in U.S. military detention without a criminal conviction and sentence. In general, the military’s authority to detain ends with the “cessation of active hostilities.” For this particular conflict, all I can say today is that we should look to conventional legal principles to supply the answer, and that both our Nations faced similar challenging questions after the cessation of hostilities in World War II, and our governments delayed the release of some Nazi German prisoners of war.
These passages occasioned a brief flurry of commentary, with contributions from Kenneth Anderson, Jack Goldsmith, Deborah Pearlstein (here and here), and Eric Posner. Particularly noteworthy (at least to me) was Goldsmith’s careful analysis of the various qualifications in Johnson’s speech. ISTM we shouldn’t start planning victory parades, etc., just yet. Still, recalling Hamilton’s caution regarding the corrosive effects of “[t]he perpetual menacings of danger,” I did find it mildly encouraging that at least some in fedgov have considered the possibility that the “War on Terror” might (some day) disappear.
Reading Johnson’s speech (and the commentary occasioned thereby) also inspired me to (finally) read this interesting article by Robert Chesney, which considered how withdrawal from Afghanistan and the “simultaneous decimation, diffusion, and fragmentation” of Al Qaeda might destabilize the legal underpinnings of the “War on Terror.” I’m interested to see whether, as Chesney believes, such developments will indeed occasion renewed debate regarding that war’s legal aspects.