Members of the group "Witness Against Torture" dressed in orange prison jump suits protest against the detention camp at Guantanamo Bay, along Pennsylvania Avenue in Washington D.C. January 10, 2012. REUTERS/Larry Downing
The approaching U.S. deadline to withdraw troops from Afghanistan in 2014 may help free a handful of Guantanamo detainees by the year’s end, with or without President Barack Obama’s blessing.
There are 17 Afghan detainees left in Guantanamo out of a total prison population of 155. Lawyers for some of these men argue that the legal basis for holding them indefinitely without charge will unravel when the U.S. draws down its troop presence from their country at the end of this year as scheduled. Human rights activists, meanwhile, are making the broader and more controversial argument that the U.S. will no longer be at war, period, at the end of 2014, and thus will be compelled to charge or release every Gitmo inmate.
The deadline is clearly on Obama’s mind. “...With the Afghan war ending, this needs to be the year Congress lifts the remaining restrictions on detainee transfers and we close the prison at Guantanamo Bay,” he said in his State of the Union speech last week. The president thus far has failed to deliver on his 2008 promise to shutter the camp.
Once active hostilities, or a “hot war,” are over with a country, the authority to detain its citizens under the laws of war disappear, the detainees’ lawyers say. Just as the U.S. had to release Japanese soldiers after WWII, so too will the Obama administration be forced to hand over Taliban militants who have been languishing at Gitmo for as many as 12 years without charge.
Frank Goldsmith, a North Carolina lawyer who represents the former top Taliban official and Gitmo detainee Khairullah Khairkhwa, says he thinks the troop withdrawal presents an “opportunity” for him to argue that his client should be freed. Afghan President Hamid Karzai has asked for Khairkhwa’s release, arguing that he was a moderate Taliban functionary who would be helpful in peace negotiations between the government and the Taliban. But the U.S. government has designated Khairkhwa as one of the 45 Gitmo detainees it cannot prosecute for lack of evidence but believes is too dangerous to release.
“There are expressions of hope for us about [the troop withdrawal] being a turning point and significant event,” Goldsmith said.
The Supreme Court decided in 2008 that Gitmo detainees must be allowed to challenge their detention in the U.S. court system. But confusion remains about whether U.S. courts have the authority to compel the government to release prisoners held under the laws of war. No prisoner has been released from the prison by court order alone, including the handful of detainees who have won their cases.
“If the war is over, that eliminates the justification for holding the men, but that’s not the same as saying they’re going to be freed,” said David Remes, a D.C. lawyer who represents an Afghan detainee and other men at Gitmo. “There is the critical question of whether any court will compel the United States to release anybody.”
Nonetheless, Remes said he will most likely file a new suit arguing for his client’s release once troops have withdrawn from Afghanistan. Harold Koh, a former top lawyer in the Obama administration, says that even if the lawyers don’t prevail in court, their argument that their clients should be released at the end of the war in Afghanistan could pressure the administration to let the men go.
“I think the main reason for litigation is to create some action forcing events,” Koh said.
But the non-Afghan detainees are most likely out of luck, since the administration argues it is fighting a broader war against al Qaeda that is unbound by geography.
Much of the government’s war against Al Qaeda and other terrorist groups—including the U.S. authority to hold men in the prison on Guantanamo Bay and to kill suspected terrorists with drones—is legally based on one brief sentence that passed Congress only a few days after 9/11.
The Authorization for the Use of Military Force (AUMF) says the government may use force against groups and individuals who “planned, authorized, committed or aided” the attacks.
But human rights and civil libertarian groups argue that once a substantial number of U.S. troops are no longer involved in active hostilities, it is unprecedented and illegal for the government to continue to use its war powers to detain or kill individuals.
“If you see continued indefinite detention after withdrawal of troops from Afghanistan, that would be a new state of affairs in the United States,” said Daphne Eviatar, senior counsel at Human Rights First. “There’s no end to that war.”
A spokeswoman for the National Security Council, Caitlin Hayden, says the Obama administration believes ongoing detention of individuals at Gitmo “is fully consistent with both international and domestic law.”
But Hayden added that the administration plans to review the AUMF in order to help craft the president’s plan to ultimately repeal it. Obama has argued that America must stop fighting an endless war against terror groups that have now been substantially weakened. Liberals argue that the AUMF should be repealed once troops are withdrawn from Afghanistan.
“At this stage, we are discussing this issue and look forward to engaging the Congress more robustly as we refine our thinking,” Hayden said in an email. “They will be a critical partner in getting us to the President’s goal of refining and ultimately repealing the AUMF.”
The top Democrat on the House Armed Services Committee, Adam Schiff, said he hasn't yet seen a proposal from the White House on what to do with the AUMF. Rep. Jerry Nadler of New York, a Democrat on the Judiciary Committee, also said he hasn't seen the White House's plan. Both men favor repealing the AUMF entirely, and charging or releasing the remaining Gitmo detainees. Conservatives argue that the law is necessary to give the president flexibility to fight a war against terror networks that are constantly changing shape and are not necessarily bound by borders.
The upcoming Congressional debate on the issue is sure to be dogged by concerns that the administration will be forced to charge or release all Gitmo prisoners if the law is repealed. The government has argued that some of the detainees would pose a danger to the country if released, but that it does not have sufficient admissible evidence to charge them in court. Concerns about this group may give lawmakers pause when asked to sunset the law.
“After 12 years, if there’s not enough evidence to charge somebody for a crime it really is time to send them back to their home countries or other foreign countries,” said Chris Anders, senior legislative counsel at the ACLU. “That’s what the United States has done with every single war in its entire history.”
Correction: An earlier version of this article incorrectly identified Jerry Nadler as a member of the House Armed Services Committee.