Michael J. Ellis, Comment, Disaggregating Legal Strategies in the War on Terror
Since the September 11th attacks, Al Qaeda has pursued a global insurgency campaign against the United States and its allies by exploiting the grievances of local guerilla groups against their home countries. In response to this global insurgency, many commentators have argued that a “disaggregation” strategy is necessary to break the ties between local insurgent groups and the globalized ideology of Al Qaeda. American counterterrorism policies have been shifting to a disaggregation approach against this global insurgency, but our legal strategies remain focused on tying local and regional extremist organizations to high-level Al Qaeda leadership.
This Comment argues that current legal strategies will prove counterproductive if they aggregate terrorist threats. The prosecution of terrorist suspects based on the material support statute and the legal basis for the use of military force against groups “associated” with Al Qaeda are two such aggregating strategies. Instead, this Comment recommends adopting disaggregation as a framework for the U.S. legal strategy against the Al Qaeda global insurgency. A disaggregated strategy could take many forms, but this Comment recommends that the U.S. government (1) seek to detain suspected terrorists in the country where they are captured rather than in centralized facilities; (2) decouple criminal terrorism prosecutions from the State Department’s Foreign Terrorist Organization list; and (3) adopt a new “use of force” statute to supplement the 2001 Authorization for Use of Military Force (AUMF).