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Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International

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Publication Date

Fall 2011




University of Texas School of Law




The legal architecture for the conflict with al-Qaeda and the Taliban has been the subject of extensive scrutiny through two presidential administrations, a decade of litigation, and multiple acts of Congress. All three branches of the federal government have to date defined the framework as one of armed conflict, and have looked to the laws of war as support for expansive authorities concerning the use of force, including detention. Yet the laws of war do not merely contemplate broad state authority; they also provide critical and non-derogable constraints on that authority. Nevertheless considerable debate rages on with respect to whether and to what extent the international laws of war inform and constrain the U.S. government’s conduct in this conflict.

This Article provides a survey of the legal architecture currently governing the conflict with al-Qaeda and the Taliban, and — considering that operating framework — presents a defense of critical law of war constraints on state action. It responds to Karl Chang’s Article, “Enemy Status and Military Detention in the War Against Al-Qaeda,” which proposes a broad legal theory of detention based on the law of neutrality and divorced from core protective law of war constraints. In responding to this and other calls for broad authority, this Article supports the complex though crucial practice of applying jus in bello principles, such as the principle of distinction between belligerents and civilians, to modern armed conflicts such as that with al-Qaeda and the Taliban. To the extent the U.S. government and other states rely on an armed conflict paradigm to support broad authorities, they must likewise constrain themselves in accordance with the international legal regimes governing such conflicts.

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