Typically, when a war ends, so does the combatants’ authority to detain the other side’s fighters. But as the conclusion of the US war in Afghanistan approaches, the inmate population of Guantánamo Bay is likely to be an exception – and, for the Obama administration, the latest complication to its attempt to close the infamous wartime detention complex.
In December, when President Barack Obama and his Nato allies formally end their combat role in Afghanistan, US officials indicate there is unlikely to be a corresponding release of detainees at Guantánamo who were captured during the country’s longest conflict.
The question has been the subject of recent internal debate in the Obama administration, which is wrapped up in the broader question of future detention policy.
Already human rights groups and lawyers for the detainees say they anticipate filing a new wave of lawsuits challenging the basis for a wartime detention after the war ends – the next phase in more than a decade of attempts to litigate the end of indefinite detention.
For the White House, the Justice Department and the Pentagon, the complicating factor is the unique legal authority undergirding the Afghanistan war.
Passed by Congress days after the terrorist attacks of 11 September 2001, the Authorization to Use Military Force cleared the legal path for the invasion of Afghanistan – and much more.
Known as the AUMF, its broad language blessed not only the Afghanistan war, but a global battle against al-Qaida without an expiration date. Subsequent interpretations of the AUMF broadened the definition of the adversary to include al-Qaida’s “associated forces”.
Effectively, the AUMF unties wartime operations, including detention, from a time or a place and hinges them on membership or association with al-Qaida. In a speech in May 2013, Obama announced his intention to “ultimately repeal” its mandate, although tangible progress toward that goal is difficult to discern.
Caitlin Hayden, a spokeswoman for the National Security Council, pointed to both the AUMF and Congress’s defense authorization for the 2012 fiscal year as providing the necessary authorities for future detentions, while noting Obama’s desire to repeal the AUMF.
Referring to the Guantánamo equivalent of a parole hearing, Lieutenant Colonel Todd Breasseale, the Pentagon spokesman for detentions policy, said: “We continue to assess the individual detainee cases through the Periodic Review Board process.
“It’s worth noting that we continually seek the appropriate justification for continued detention and when there is no more legal justification, we will no longer detain them.”
The vast majority of detention operations in Afghanistan are now performed by the Afghan security forces which the US military sponsor. The exception is approximately 50 non-Afghans detained in Afghanistan by the US directly. Their fate after December is unknown.
But there are 154 detainees still at Guantánamo Bay. Among them are 14 Afghans, some of whom are suspected not of being members of al-Qaida, but being members of the Taliban or affiliated groups, with whom the US will no longer be formally at war after December. At least five of them have been discussed as part of a potential trade with the Taliban for the US prisoner of war Sergeant Bowe Bergdahl.
Those 14 Afghans are the clearest-cut cases for release once the Afghanistan war ends, lawyers and former US officials said.
“There may be some tricky cases for the government if detainees were captured and remain held as fighters for the Taliban but are not linked more directly to al-Qaida,” said Matthew Waxman, a Pentagon official in charge of detentions policy in the Bush administration.
Other human rights groups argue that the case for holding even those Guantánamo non-Afghans who have not been charged with war crimes may grow legally tenuous after December, even if the administration cites its power under the AUMF.
“US courts might go further. Once there is no battlefield, what ‘war’ is left?” said Andrea Prasow of Human Rights Watch.
“I’m not confident that federal judges will continue to authorize detention even for people allegedly associated with al-Qaida, and less so for those amorphous ‘associated forces’. And I don’t think the Obama administration is [confident], either.”
Wells Dixon of the Center for Constitutional Rights said his organization intended to bring lawsuits after December for the release of Guantánamo’s Afghans and Yemenis whom the Defense Department no longer believes pose an ongoing security threat.
“It’s classic arbitrary detention, which will be brought into starker relief as we get closer to the end of combat operations in Afghanistan. So we anticipate filing motions for release on behalf of these cleared detainees,” Dixon said.
Such inmates’ anticipated post-December Guantánamo detention comes despite three dovetailing administration priorities: the end of the Afghanistan war; the slow effort to close Guantánamo; and Obama’s desire to unwind the “perpetual wartime footing” created by the AUMF. It also underscores the complications entwined with all three.
In December 2012 Jeh Johnson, the former top Pentagon lawyer and current Homeland Security secretary, mused in a speech at Oxford that even after the end of the AUMF, the US might possess residual wartime detention powers, citing a second world war precedent.
The US and the UK “faced similar challenging questions after the cessation of hostilities in World War Two, and our governments delayed the release of some Nazi German prisoners of war,” Johnson noted.
Hayden, the NSC spokeswoman, said the administration planned to work with Congress and the public “on efforts to ensure that the legal authorities for our counterterrorism and detention operations are appropriately tailored”.
She continued: “At this stage, we are discussing this issue and look forward to engaging the Congress more robustly as our thinking progresses. They will be a critical partner in getting us to the president’s goal of refining and ultimately repealing the AUMF.”
Commander John Filostrat, a spokesman for the military task force in charge of detentions at Guantánamo, said decisions about post-December detentions would be determined at the White House and the Pentagon.
“We fully support the president’s efforts to close the detention facility, but Joint Task Force Guantánamo does not control the detainee transfer process. Our primary mission at Joint Task Force Guantánamo is to detain those in our custody in a safe, humane, legal and transparent manner,” he said.
Dixon of the Center on Constitutional Rights said once the US loses its final formal battlefield, the challenges to continuing wartime detentions would accelerate.
“The end of combat operations in Afghanistan is significant because it underscores that detainees not charged with offenses are no longer detainable under the laws of war,” he said. “The closer we get to the end of 2014, the weaker the president’s claim of continuing detention authority under the AUMF will become.”