The U.S. conflict with al Qaeda raises a number of complicated and contested
questions regarding the geographic scope of the battlefield and the related limits on the
state’s authority to use lethal force and to detain without charge. To date, the legal and policy discussions on this issue have resulted in a heated and intractable debate.
On the one hand, the United States and its supporters argue that the conflict—and
broad detention and targeting authorities—extend to wherever the alleged enemy is
found, subject to a series of malleable policy constraints. On the other hand, European
allies, human rights groups, and other scholars, fearing the creep of war, counter that
the conflict and related authorities are geographically limited to Afghanistan and
possibly northwest Pakistan. Based on this view, state action outside these areas is
governed exclusively by civilian law enforcement, tempered by international human
rights norms.
This Article breaks through the impasse. It offers a new and comprehensive law-
of-war framework that mediates the multifaceted security, liberty, and foreign policy
interests at stake. Specifically, the Article recognizes the state’s need to respond to the
enemy threat wherever it is located, but argues that the rules for doing so ought to
distinguish between the so-called “hot battlefield” and elsewhere. It proposes a set of
binding standards that would limit and legitimize the use of targeted killings and
law-of-war detention outside zones of active hostilities—subjecting their use to an
individualized threat assessment, a least-harmful-means test, and significant
procedural safeguards. The Article concludes by describing how and why this
approach should be incorporated into U.S. and international law and applied to what
are likely to be increasingly common threats posed by transnational non–state actors
in the future.