End 21 Years Of Injustice

Will the End of War in Afghanistan Spur Obama to Close Guantánamo?

End the endless war

"End the endless war: a powerful message from a protest in the U.K. on the 12th anniversary of the invasion of Afghanistan in October 2013.

By Andy Worthington, November 6, 2013

The short answer to that question is probably no, for reasons I will explain below, although it is, of course, significant to numerous interested parties that the withdrawal of U.S. troops from Afghanistan next year provides an opportunity for new discussions about the ongoing detention of 164 prisoners at Guantánamo, and, probably, new legal challenges on their behalf.

On October 18, the Washington Post discussed these issues in an article entitled, "Afghan war’s approaching end throws legal status of Guantánamo detainees into doubt," in which Karen DeYoung suggested, "The approaching end of the U.S. war in Afghanistan could help President Obama move toward what he has said he wanted to do since his first day in office: close the U.S. prison at Guantánamo Bay, Cuba."

The article described how officials in the Obama administration were "examining whether the withdrawal of U.S. troops at the end of 2014 could open the door" for some of the remaining 164 prisoners "to challenge the legal authority of the United States to continue to imprison them."

In September, one prisoner, Fawzi al-Odah, who is one of the last two Kuwaiti prisoners still held in Guantánamo, filed a petition with the District Court in Washington D.C. As Lyle Denniston described it for SCOTUSblog, al-Odah "is making a new plea for his release -- just as soon as the U.S. completes its withdrawal from the war in Afghanistan." At that point, the lawyers for al-Odah argued, "the U.S. government will no longer have a legal basis for holding him."

Al-Odah's habeas petition "contended that the Supreme Court has allowed detention of prisoners captured in Afghanistan or Pakistan only as long as 'armed hostilities' continue for U.S. forces in that region," as the Supreme Court affirmed in Hamdi v. Rumsfeld in June 2004. Denniston added, "With the Obama administration’s planned end of those operations by the end of December 2014, the document contended, al-Odah must be sent home to Kuwait."

In the Washington Post, meanwhile, Karen DeYoung noted that, in particular, officials "believe the war’s declared end could force a reckoning" over the fate of the 17 Afghan prisoners who are still held, and quoted Brig. Gen. Mark Martins, the chief prosecutor for the military commissions at Guantánamo, who recently stated in an interview, “In the words of the Supreme Court, the authority to detain -- if you’re detaining based on someone being a belligerent -- can unravel as hot wars end. And I think that’s a real question.”

The Washington Post correctly noted that the justification for holding men at Guantánamo is the Authorization for Use of Military Force against those who “planned, authorized, committed or aided” the 9/11 attacks, and those who "might launch new attacks," as the Post put it, which was passed by Congress in the days following the attacks. The Post also noted that, in a major speech on national security issues in May, President Obama stated that he "would like to do away with the Authorization for the Use of Military Force," as the Post described it, "and replace it with more targeted versions to allow action against new al-Qaeda related groups in the Middle East and Africa and other threats as they arise." In May, he specifically spoke of his goal being to ”refine, and ultimately repeal” the existing authority.

As the Post noted, repealing the 2001 AUMF "could allow other detainees imprisoned under its terms to re-file habeas corpus petitions that the government had successfully quashed." One senior administration official, speaking anonymously, explained, “If that were to go away, you really don’t have that legal hook for continued detention. I think you would have some very interesting constitutional questions.”

Why it is not true that Congress is preventing the president from releasing Guantánamo prisoners

These are interesting points, but here at "Close Guantánamo" we are concerned by some of the inaccuracies in DeYoung's article. In particular, when discussing the 164 men still held, she wrote that President Obama has been "[b]locked by Congress from releasing or transferring many of the remaining 164 detainees."

As my colleague Tom Wilner explains, this is a myth. As he describes it, in "Missing the Point at Guantánamo," an article published this week on the Warscapes website:

Congress had passed legislation effectively blocking the president from transferring detainees to their home or other countries, but it then amended the law two years ago allowing the president to waive those restrictions. As Carl Levin, the Chair of the Senate Armed Services Committee, pointed out, that amendment "provides a clear route for the transfer of detainees to third countries.” The president has simply not used it.

Why the remaining Afghan prisoners are not all "Taliban members captured on the battlefield"

Another error concerns the Afghan prisoners, described, casually, as being "Afghan Taliban members captured on the battlefield," when this is clearly not the case. Although just 17 Afghans remain at Guantánamo, out of the 218 or so held in total since the prison opened, not all of these men can fairly be described as being "Afghan Taliban members" or as having been "captured on the battlefield," as we have discussed in a number of prisoner profiles -- see here (Abdul Ghani) and here (Shawali Khan), and also here (Obaidullah). Also see my overviews of the remaining Afghan prisoners, “US in Talks to Return the 17 Afghan Prisoners in Guantánamo,” and “Close Guantánamo, Free the Afghans.”

Why it is not true that there are prisoners at Guantánamo who cannot be tried in federal court, and others who are "too dangerous to release" but are "ineligible for trial"

Another problem with the Post's article concerns the claim that, even if the end of the war assists the release of prisoners, the administration "would still need a place to hold those being tried in military commissions, including the alleged 9/11 plotters, and potentially some of the four dozen men deemed too dangerous to release but who are ineligible for trial because evidence against them is inadmissible."

The point regarding trials is, on the surface, accurate, although it remains to be seen whether the commissions can survive their mauling by appeals court judges last October and in January this year, when conservative judges overturned two of the only convictions in the commissions' wretched history, ruling that they involved war crimes that were not regarded as war crimes when the legislation approving the commissions was passed. In fact, as anyone paying close attention has known for years, the war crimes were invented by Congress in 2006 after the Supreme Court ruled that the first incarnation of the commissions was illegal, and the Obama administration knew of the problems in 2009, but failed to talk Congress out of passing a third version of the commissions that summer.

This huge blow to the commissions' credibility led Brig. Gen. Martins to concede, in June this year, that only a maximum of 13 of the prisoners still held would ever face trials, and on November 4 Eric Holder, who had announced in November 2009 that the men accused of involvement in the 9/11 attacks would be tried in New York, but had then been obliged to drop the trial in the face of cynical political opposition, made a speech in which he made a point of saying that he had been right all along.

Holder said, "I think that what we have seen over these past four years, not to be egocentric about this, but that I was right. I had access to documents, files, recommendations by the military, U.S. attorneys offices in the Eastern District of Virginia as well as the Southern District of New York, and I think the decision that I announced that day was the right one. I think that the facts and events that have occurred since then demonstrate that."

He added, "We unfortunately did not go down that road for reasons other than those connected to the litigation, I think reasons largely political. I think the opposition was largely political in nature, and I think this is an example of what happens when politics gets into matters that ought to simply be decided by lawyers and by national security experts."

The bigger problem with the Post's claim that the Obama administration "would still need a place to hold those being tried in military commissions … and potentially some of the four dozen men deemed too dangerous to release but who are ineligible for trial because evidence against them is inadmissible," concerns those four dozen men -- or, to be strictly accurate, the 46 men still alive out of the 48 designated for ongoing imprisonment by President Obama's inter-agency Guantánamo Review Task Force, two of whom are Fawzi al-Odah and his compatriot, Fayiz al-Kandari, both of whom are not the dangerous prisoners they have been made out to be.

As Tom Wilner notes:

That line [about prisoners being "too dangerous to release" but "ineligible for trial"] has been repeated time and again by the press, and never examined. It is simply not true. The government's basis for detaining each of the men at Guantánamo is now publicly available on WikiLeaks. Members of the press can examine the evidence themselves. There are clearly some bad guys down there -- generally acknowledged now as fewer than 20. These men can all be tried. The only thing preventing their conviction is the military commission system itself, which is totally untested and ineffective. They would all have been convicted long ago in our federal courts.

An examination of the government's basis for detaining the other men at Guantánamo shows that the reason they can't be tried is not because the evidence against them is inadmissible, but simply because it is so flimsy and speculative that it would be laughed out of any federal court in the country. It would be a good thing if the press examined that evidence. And it would be a good thing if it would pay more attention to the continuing injustice at Guantánamo which is so contrary to our nation's fundamental values and remains such a blemish on our reputation around the world.

Scrap the Authorization for Use of Military Force, yes, but don't let President Obama off the hook

As the Periodic Review Board process gets underway, in which these 46 men, plus 25 others once deemed eligible for trials, will have their cases reviewed, to see if they should still be held, it remains apparent that the fate of the majority of the men is in the president's hands. He needs to release the 84 men cleared for release in January 2010 by his task force, as he promised to resume doing in his major speech in May -- although since that date just two men have been released. He also needs to make sure that the aim of the Periodic Review Board is to rigorously examine the so-called evidence against the prisoners, as Tom suggests, because so much of it is hearsay and innuendo, or false statements produced under torture or other forms of duress, or through prisoners being bribed with the promise of better living conditions.

It is apparent that the end of the war in Afghanistan provides an important opportunity for the AUMF to be scrapped. As the Post noted, the AUMF has provided the legal justification not only for military action in Afghanistan, but also for the global program of drone attacks. The Post also noted, correctly, "With no legislative or legal challenge, Obama has also adopted a more expanded interpretation of the law to use force against al-Qaeda 'associates,' including groups that did not exist when it was first enacted."

"As currently interpreted," the Post continued, "the AUMF has no geographic boundaries and can justify military action anywhere in the world where the administration determines it applies." Under Obama, it has been used to justify drone strikes in Yemen (including lethal strikes against U.S. citizens) and Somalia, and, just last month, it was cited as the legal authority for the kidnap by U.S. Special Forces of Abu Anas al-Libi in Libya, and another failed operation in Somalia.

Reflecting on the use of the AUMF over the last 12 years, former Rep. Jane Harman (D-Calif.), who voted for it on September 14, 2001, said recently, “I never imagined that the AUMF would still be in effect today. Over time, some would assert, and I agree, that it has taken on a life of its own, and the executive branch has used it in ways that no one who voted for it envisioned.”

However, the Post also noted, "Others have been reluctant to do away with it or narrow its scope, in part because of the potential effect its demise could have on Guantánamo" -- where, although the Post failed to explain it, dark forces, particularly amongst Republicans in Congress, are determined to keep the prison open, for misguided, and perhaps even malevolent reasons of their own.

Despite Obama's fine words about the AUMF, the only proposal to do away with it --an amendment proposed by Rep. Adam Schiff (D-Calif.) to repeal it after troops leave Afghanistan in December 2014 -- was defeated by 236 votes to 180. Rep. Schiff told the Post that ending the AUMF “forces the issue,” adding, “It doesn’t mean there would have to be some precipitous decision” on Guantánamo, "but the clock would very much be ticking.”

According to this scenario, the clock has not yet even begun ticking on Guantánamo, although after nearly 12 years of monstrous injustice, that is clearly ridiculous. It is good that bringing the AUMF to an end is being discussed, and that the withdrawal of troops will bring new legal challenges, but, as we have persistently made clear here at "Close Guantanamo," the president has the authority to release the 84 cleared prisoners who are still held, and the majority of the other men need to have the supposed basis for their ongoing imprisonment examined in a very detailed and objective manner.