Razor wire and a watchtower stand in a closed section of the US prison in Guantanamo Bay on October 17. 22, 2016.
John Moore / Getty Images
John Moore / Getty Images
John Moore / Getty Images
The war in Afghanistan has lasted almost 20 years. One of its key architects, former US Secretary of Defense Donald Rumsfeld, died last month. And this week, President Biden said that the US military operation will end on August 31, shortly before the 20th anniversary of the terrorist attacks of September 11, 2001.
So what does that mean for Gitmo? After all, the US military prison in Guantanamo Bay, Cuba, was created to house enemy combatants captured in Afghanistan and the so-called War on Terrorism. If the conflict in Afghanistan ends, what will happen to its prisoners of war?
Here are five questions, and answers, about what could happen to the Guantanamo prison when the conflict in Afghanistan ends.
First, remind me: how many prisoners are left in Gitmo?
Over the years, Guantánamo has housed nearly 800 people, but now only 40 men are incarcerated there, and almost three-quarters of them have never been criminally charged. They are known as “prisoners forever” and are held indefinitely. Some have been there for almost two decades.
How has the United States government justified holding them without charging them with any crime?
Guantanamo’s legal basis is that after September 11, Congress approved an “authorization for the use of military force” in 2001 to prosecute whoever was responsible for those attacks, such as al-Qaida and the Taliban. That law gives the president sweeping powers during wartime, and the government claims it includes the ability to detain prisoners without charge or trial.
But it is unclear when those powers expire and what the parameters of the war are. It is also unclear whether the United States can justify holding prisoners forever because of a larger, amorphous global war on terror. As a result, the withdrawal of US troops from Afghanistan raises complicated legal questions, such as whether a war can still be considered ongoing once the combatants leave the main battlefield, and whether the prisoners should be released after the withdrawal of the troops. .
“Without troops in Afghanistan, it will be more difficult for the government or the different courts to say: ‘Well, yes, you said that the war was over, and also there are no troops in the field, and no one shoots, but he is still going.’ “Guantanamo defense attorney Ben Farley said. “It will be more difficult to say that with a simple face.”
Has any court intervened in this?
Yes, lawsuits have been filed on these issues, and the courts have generally avoided addressing specifically whether these vast presidential powers of war are specific to a certain geography. Instead, the courts have been able to point to the war in Afghanistan as a justification for holding them in custody. But human rights activists and lawyers for detainees say that a war must have definite boundaries so that we know when it is over and it is time to release the prisoners.
“One of the tense questions for the past 20 years has been whether the war on terror extends beyond the borders of Afghanistan and nearby Pakistan,” said Guantanamo defense attorney Michel Paradis. “Is the war a war against al-Qaida and the Taliban in Afghanistan? Or is it a war against terrorism in general? Is it a war against al-Qaida and anything that shares the ideology of al-Qaida, any organization to separate from al-Qaeda? Al-Qaida? “
Or has the war on terror turned into a “rhetorical war,” he added, similar to the war on drugs, the war on poverty and the war on cancer, which do not convey procedural powers such as imprisoning people indefinitely?
“There are these pretty important questions,” said Paradis, who also teaches at Columbia Law School, “but those debates have largely been eluded, if only because the war in Afghanistan has been ongoing.”
Critics of Guantanamo say it makes no sense to argue that the war ended for the purpose of bringing troops home, but the war continues for the purpose of detaining people captured by those troops.
Yet several Senate Republicans say releasing these prisoners would endanger the country, and the Justice Department continues to argue that the United States has the authority to indefinitely detain accused terrorists.
“We have been and continue to be at war with al-Qaida,” Justice Department attorney Stephen M. Elliott said at a May hearing at the United States District Court in Washington, DC, in a case involving a former member. of the Afghan militia that has been detained at Guantanamo since then. 2007.
Al-Qaeda is “transforming and evolving,” Elliott said, and America’s “war on terror” continues.
Now that the United States is leaving Afghanistan, Paradis said, he assumes that the Guantanamo prisoners are preparing new legal motions that will eventually land before the Supreme Court.
“I imagine there will be at least some detainees saying that you can no longer hold me because the only reason you have been holding me all this time, all these decades, has been the claim that if they release me,” I will be a danger in war. from Afghanistan, “he said.” And without that, why are you still hugging me? “
What if the prisoners win that argument?
That’s tricky because the United States has to find countries to take them, and some of the prisoners are from collapsed countries like Yemen. But since President Biden took office, at least six Guantanamo detainees have been allowed to be transferred to other countries.
Still, Guantanamo defense attorney Wells Dixon notes that just because transfers have been approved does not mean they are imminent: “There are detainees at Guantanamo today who have been approved for transfer for more than a decade and are still in Guantanamo. . , “he said.
Still, does cleaning the prisoners for release lay the groundwork for emptying Gitmo’s prison and shutting it down?
Yes. As Paradis points out: “The more people are authorized to be released, the easier it will be to close Guantánamo, because the population of detainees is smaller and smaller.”
However, the Justice Department is against the Biden administration by opposing legal motions filed by Gitmo prisoners, said Dixon, who is also a senior attorney at the Center for Constitutional Rights.
“Why does the US government reflectively continue to combat detainees, given the withdrawal of troops from Afghanistan and the president’s declarations that the conflict is ending?” Dixon asked. “If you look at the president’s mandate to close the prison and you look at what the Justice Department and other agencies are doing, they totally disagree.”
But with the legal argument to indefinitely detain Gitmo’s prisoners on more shaky ground when US troops leave Afghanistan, Biden and the Justice Department could finally get on the same page, possibly leading to the eventual closure of the military prison of Guantanamo.
With the United States’ withdrawal from Afghanistan, “I think what you will see is a lot of pressure exerted on the administration, and on the government in general in the litigation, arguing that the armed conflict is over,” said Farley, Guantanamo’s defense attorney. . , “and the detention authority has evaporated.”