Constitution Check: Is the “war on terrorism” coming to an end?

Source: U.S. Army.

Lyle Denniston looks at the legalities of officially ending “armed conflict” in the war on terrorism, in the wake of rulings made after the 9/11 terrorist attacks.

The statement at issue:

“The authorization that was passed in 2001 was basically authorization for the military to engage in armed conflict…. Once that authorization at some point is no longer in effect, we have to, in my view, revert to the more traditional approaches to counter-terrorism and law enforcement… It can’t be, it shouldn’t be regarded as a perpetual war without any sort of end. In my view, war, armed conflict, must be regarded as finite and an extraordinary state of affairs…. I talked to a number of my colleagues in the administration who were fully supportive of thinking about, talking about this issue.”

– Jeh Johnson, who recently ended his service as general counsel of the Defense Department, in an interview January 3 on the Rachel Maddow Show on MSNBC.

We checked the Constitution, and…

One of the conspicuous features of the war powers that the Constitution gives to the national government is that it anticipates that there will be wars, and provides how war is to begin, but says nothing about how or when a war should or might end. Past wars ended (more or less) with the signing of an armistice or a peace agreement.

But, in an age of wars of insurgency, by violent movements rather than by organized governments, a state of war can exist without ever being started in a formal, constitutional way, and it is difficult–at best–to define when it might end.

That appears to be the kind of conflict that the U.S. government has been waging for more than 11 years, in what used to be called a “war on terrorism” (the official government position is that it no longer uses that label).

Until just recently, it was routine for Washington officials to caution that there might never be an end to such a conflict. Part of the reason for that was to keep America on a state of alert and vigilance. But it is now clear that, in the highest councils of the Obama administration, some thinking is being done about an end-point to the “armed conflict” against terrorist networks around the globe.

That is what Jeh Johnson, the Pentagon’s top lawyer (until just this month), has been talking about quite boldly in public in recent weeks. He has spoken of at least a “turning point” in the successful efforts against Al Qaeda and the Taliban, a point at which he has said there will no longer be a legal justification for the U.S. to carry on “armed conflict” under the war authorization Congress enacted just days after the terrorist attacks of September 11, 2001.

Because there never was a formal declaration of war by Congress after those attacks, that resolution was–and remains–the only legal foundation for the ongoing conflict against terrorist movements.

When the Supreme Court, nearly nine years ago, ruled that the 2001 war resolution did indeed give the government the authority to wage war, the opinion actually stressed that the court was not endorsing an endless state of war.

About Constitution Check

• In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about its meaning and what duties it imposes or rights it protects.

The justices’ opinion said that the court was relying upon traditional law-of-law principles, including the notion that, at some point, there is an end to hostilities. Noting the unconventional nature of modern armed conflict, the decision suggested that, if the traditional notion that wars do come to an end is no longer the reality, the constitutional support for war “may unravel.”

Jeh Johnson and those within the government with whom he has been conversing about keeping “armed conflict” limited in time and scope appear to be thinking about something like an unraveling of the constitutional justification.

When asked, he has been unable to say with specificity when, and by whom, “armed conflict” will be declared to have reached a conclusion, or even a significant “turning point.” Nevertheless, it is clear from what he has been saying that he at least is beginning to define a state of normalcy, a return to a non-war footing in the way the national government deals with global threats to its security.

At the same time, however, it does not appear that either of the other two branches of the national government has begun to explore those end-of-conflict ideas on their own. Congress each year continues to add new limitations on how the president and the Pentagon can deal with incidents of war, like holding suspected terrorists and conducting war crimes trials. There is nothing in any of those measures that even hints at a return to a non-war footing.

The Supreme Court has not had a major ruling on a “war on terrorism” case in nearly five years, and it has appeared to have largely given up on monitoring the legal incidents of that war. It appears to have made an institutional judgment that, having imposed some broad limitations on executive branch power in rulings between 2004 and 2008, it is prepared to leave the process of the war effort to the political branches.

It was within the executive branch, of course, that Jeh Johnson began taking what was something of a political risk by talking about war as necessarily “finite,” and not the normal state of affairs. Although he has left the government, it seems likely that the conversation he helped start will not end with his departure. It is a policy conversation but, at its core, it is also a constitutional conversation.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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