Duck-Rabbits and Drones: Legal Indeterminacy in the War on Terror

"I shall call the following figure ... the duck-rabbit. It can be seen as a rabbit's head, or as a duck's." [ILLUSTRATION OMITTED] --Ludwig Wittgenstein, Philosophical Investigations (xi) (1) INTRODUCTION I. A VIOLENT RORSCHACH TEST II. DUCK-RABBITS III. HIGH STAKES IV. ALL THE BOUNDARIES ... WILL BE TOTALLY DESTROYED CONCLUSION: LAW'S LIMITS INTRODUCTION Thirteen years after the 9/11 attacks, we're still going around in circles, unable to find satisfactory answers to even the most basic legal questions. Are U.S. efforts to counter the activities of al Qaeda and its associates subject to the law of armed conflict, or not? Does the answer depend on geography? On the nature and scale of "enemy" activities? Who is the enemy? What is an "associate" of al Qaeda, and which individuals can be detained or targeted, subject to what legal limits? This Article argues that the law cannot provide answers to any of these questions. In fact, the search for the "correct" legal answer to these questions is not only fruitless, but also counterproductive. It distracts us from the far more important question: in an era in which traditional legal constructs no longer place meaningful limits on a State's use of lethal force, what new constraints are desirable and feasible, and, going forward, how can we embed them in policy and law? In Part I of this Article, I look back at the weeks and months following the 9/11 attacks and outline the various competing arguments about the how the attacks should, as a legal matter, be characterized. In Part II, I argue that there can be no definitive answer to most of the key "legal" questions raised by the 9/11 attacks, since different ways of conceptualizing the events of 9/11 (and subsequent events) both reflect and trigger entirely different--and to a great extent mutually exclusive--legal frameworks. In Part III, I note that the fact that there is no "correct" legal framework does not mean that the choice of legal frameworks is therefore inconsequential. Far from it: the U.S. government's decision to rely on an armed conflict framework after 9/11 has had far-reaching consequences, raising a host of new and equally unanswerable questions, and thereby dramatically reducing the ability of existing law to act as an effective check on government power. In Part IV, I note that our growing inability to draw reasonably clear lines between "war" and "non-war" has institutional as well as legal consequences. In Part V, the conclusion, I argue that we need to accept that existing law can offer little useful guidance on how the U.S. should respond to terrorism. The questions we face are currently questions of policy, not law, though how we answer those policy questions should, ultimately, lead us to create new law. I. A VIOLENT RORSCHACH TEST In the days and weeks immediately after September 11, 2011, the 9/11 terrorist attacks became for many the legal equivalent of a Rorschach test. While most commentators insisted that there was a manifestly correct and a manifestly incorrect way to understand the applicable legal paradigm for the 9/11 attacks, there was little agreement on just what constituted the applicable legal framework. Depending on the observer, the 9/11 attacks were variously construed as criminal acts, acts of war, or something in between, thus fitting into (and triggering) any of several radically different legal regimes. In liberal and libertarian-leaning circles, for instance, many scholars took the view that since the 9/11 attacks were carried out by non-state actors, using nothing that resembled traditional weapons, they were best understood as criminal acts. Though they were crimes of a frightening magnitude and complexity, the attacks were considered by such scholars to be appropriately addressed through an ordinary law enforcement paradigm. Such commentators roundly dismissed the notion that the attacks could trigger a "war. …