As U.S. Pulls Troops From Afghanistan, What Might Happen At Guantánamo : NPR

Barbed wire and a watchtower stand in a closed section of the US prison in Guantánamo Bay on October 22, 2016. John Moore / Getty Images Hide caption

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John Moore / Getty Images

Barbed wire and a watchtower stand in a closed section of the US prison in Guantánamo Bay on October 22, 2016.

John Moore / Getty Images

The war in Afghanistan lasted almost 20 years. One of its key architects, former Secretary of Defense Donald Rumsfeld, died last month. And this week, President Biden said the US military operation there would end on August 31, just before the twentieth anniversary of the September 11, 2001 terrorist attacks.

What does this mean for Gitmo? Finally, the US military prison in Guantánamo Bay, Cuba, was created to hold enemy fighters captured in Afghanistan and the so-called war on terror. What happens to the prisoners of war when the Afghanistan conflict ends?

Here are five questions – and answers – about what could happen to Guantánamo Prison if the conflict in Afghanistan ends.

First, remind me: How many prisoners are left at Gitmo?

Over the years Guantánamo has detained nearly 800 people, but now only 40 men are detained there and nearly three-quarters of them have never been charged. They are known as “Eternal Prisoners” and are detained indefinitely. Some have been around for almost two decades.

How did the US government justify holding you without charge of any crimes?

The legal basis of Guantánamo is that after September 11, 2001, Congress passed an “authorization to use military force” to take action against anyone responsible for these attacks, such as al-Qaeda and the Taliban. This law gives the president extensive powers during the war, and the government claims that this includes the ability to detain prisoners without charge or trial.

But it is unclear when these powers will expire and what the parameters of the war are. It is also not clear whether the US can justify eternal imprisonment over a larger, amorphous global war on terror. The withdrawal of US troops from Afghanistan therefore raises complicated legal questions, such as whether a war can still be considered to be continued after leaving the main battlefield or whether prisoners have to be released after troops have withdrawn.

“Without troops in Afghanistan, it becomes more difficult for the government or the courts of honor to say, ‘Well, you said the war was over and there are no troops in the field and nobody is shooting, but the war is going on on, “said Guantánamo defender Ben Farley. “It just gets harder to say with a plain face.”

Have any courts commented on this?

Yes, lawsuits have been filed on these issues, and courts have generally avoided dealing specifically with whether these vast military powers of the president are specific to a particular region. Instead, courts could use the war in Afghanistan as a justification for detaining detainees. But human rights activists and inmate lawyers say that a war must have boundaries so we know when it’s over and the time to release prisoners.

“One of the hot questions of the last 20 years has been whether or not the war on terrorism extends beyond the borders of Afghanistan and nearby Pakistan,” said Guantánamo defender Michel Paradis. “Is the war a war against al-Qaida and the Taliban in Afghanistan? Or is it a war on terrorism in general? Is it a war against al-Qaeda and everything that shares al-Qaeda ideology, any organization that secedes from al-Qaeda? Al-Qaida? “

Or has the war on terror become a “rhetorical war”, similar to the war on drugs, war on poverty, and war on cancer, which does not confer public prosecutorial powers such as indefinite imprisonment of people?

“There are these pretty big questions,” says Paradis, who also teaches at Columbia Law School, “but these debates have largely been avoided because the war in Afghanistan is ongoing.”

Guantanamo critics find it nonsensical to argue that the war is over to bring troops home, but the war continues to detain people captured by those troops.

However, several Senate Republicans say that releasing these prisoners would put the country at risk, and the Justice Department continues to argue that the US has the power to hold suspected terrorists indefinitely.

“We have been and will remain at war with al-Qaeda,” Justice Department attorney Stephen M. Elliott said at a hearing in the US District Court in Washington DC in May on a case involving a former Afghan militia member. which has been held in Guantánamo since 2007.

Al-Qaeda “is transforming and developing,” said Elliott, and the US “war on terrorism” continues.

Now that the US is leaving Afghanistan, Paradis expects Guantanamo detainees to prepare new legal petitions that will eventually end up in the Supreme Court.

“I imagine there will be at least a couple of inmates who say you can’t hold me anymore because the only reason you’ve been holding me all these decades now was because I was “I’ll be a danger in the war in Afghanistan,” he said. “And why are you still holding me without that?”

What if the prisoners win this argument?

This is difficult because the US has to find countries to take them in and some of the prisoners are from collapsed countries like Yemen. However, since President Biden took office, at least six Guantánamo detainees have been released for transfer to other countries.

Still, Guantánamo’s defense attorney Wells Dixon points out that just because transfers have been approved doesn’t mean they are imminent: “Today there are inmates in Guantánamo who have been approved for transfer for more than a decade, and they are still in Guantánamo,” he said.

But does the release of prisoners for release form the basis for emptying and closing Gitmo’s prison?

Yes. As Paradis notes, “The more people released, the easier it is to close Guantánamo because the prisoner population is getting smaller every day.”

However, the Department of Justice is opposed to legal petitions filed by Gitmo prisoners with the Biden government, said Dixon, who is also a senior officer at the Center for Constitutional Rights.

“Given the withdrawal of troops from Afghanistan and the president’s declarations that the conflict is ending, why is the US government reflexively fighting detainee cases?” asked Dixon. “When you look at the president’s mandate to close the prison and see what the Justice Department and other agencies are doing, they are utterly divided.”

But with the legal case for indefinite detention of Gitmo prisoners on shakier ground when U.S. troops leave Afghanistan, Biden and the Justice Department could finally be on the same side, potentially leading to the closure of Guantánamo military prison.

With the US withdrawal from Afghanistan “I think what you are going to see is that there is a lot of pressure on the government, and the government in general, in litigation, arguing that the armed conflict is over,” said Farley, the defense attorney from Guantánamo, “and the detention authority has evaporated.”