But it leaves open the question of what fundamental paradigm of international law actually governs the activities that constitute the American confrontation with international terrorists. Is the fundamental legal paradigm one of the laws of war and armed conflict, on the one hand, or is it extraterritorial law enforcement as limited by international human rights law, on the other—or perhaps some mixture of these distinct legal authorities?
The differences here are not academic; they can yield radically different answers to questions concerning the use of force and its conduct, starting with whether there is an obligation to seek to arrest and detain someone before striking with lethal force. They also guide questions of how one detains and tries suspects for crimes.
The Obama administration’s answer to this fundamental question is far less comforting to those who seek a kinder, gentler American counterterrorism. The administration has decisively rejected the widespread expectation that Obama’s election heralded a return to a purely—or more purely—law enforcement approach, at least insofar as that expectation included in the short term a law enforcement–dominated approach outside of the United States itself.
From the beginning, the administration has emphasized a kind of bifurcated nature of the conflict, in which law enforcement dominated domestically while war dominated beyond US shores. The speeches disclaim, at least as a policy matter, any intention to use law-of-war powers here at home and fiercely defend the criminal justice apparatus as a means of dealing with both US citizens captured abroad and anyone captured state-side. On the other hand, they also emphasize that the fundamental relationship between the United States and the enemy groups it confronts is one of armed conflict, as a matter of international as well as domestic law. Let’s consider these points in turn.