Salim Hamdan’s conviction in a military commission for material support of Al Qaeda separates utilitarians, who generally defer to state power, from protective theorists, who seek to shield civilians by curbing official discretion. Utilitarians view military commissions as efficient means for trying suspected terrorists. Protective theorists criticize the amorphous nature of material support charges.
The clash between utilitarians and protective theorists colors other issues, including “enhanced” interrogation and limits on targeting. Protective theorists merit praise for their scrutiny of interrogation. In contrast, utilitarians have trivialized interrogation abuses. However, protective theorists’ scrutiny of states is burdened by hindsight bias. Failing to recognize the challenges faced by states, protective theorists have ignored the risk to civilians posed by changes such as the International Committee of the Red Cross’ Guidance on Direct Participation in Hostilities that create a “revolving door” shielding bomb makers for terrorist groups.
To move beyond the utilitarian–protective debate, this piece advances a structural approach informed by two values: a linear time horizon and holistic signaling. Drawing on cognitive studies of humans’ flawed temporal judgment and the Framers’ work on institutional design, a linear time horizon curbs both myopia that infects officials and hindsight bias that plagues the protective model. Holistic signaling requires the United States to support the law of armed conflict, even (or especially) when adversaries such as Al Qaeda reject that framework. Applying the structural test, a state can use a sliding scale of imminence and necessity to justify targeting Al Qaeda-affiliated terrorists in states unwilling or unable to apprehend them. However, the material support charges against Hamdan signal a troubling turn to victors’ justice.
The Fog of War Reform: Change and Structure in the Law of Armed Conflict After September 11,
95 Marq. L. Rev. 1417
Available at: https://scholarship.law.marquette.edu/mulr/vol95/iss4/13