Afghan War Is Not Over, Says Judge, So Indefinite Detention Can Continue

Though President Obama has publicaly championed end of combat operations in Afghanistan, that doesn't mean prisoners of war can be released
by Jon Queally
Common Dreams
Aug. 02, 2015

A federal judge on Thursday rejected the petition of a Guantanamo detainee who had requested to be freed after spending nearly a decade and a half in the U.S. offshore prison without trial.

As the Associated Press reports:

Muktar Yahya Najee al-Warafi has said his detention was illegal in light of President Barack Obama's statements that active hostilities in Afghanistan had ended.

The Yemeni was captured in Afghanistan in 2001. Courts have upheld his detention on grounds that he likely aided Taliban forces.

His lawyers argued that his detention was unlawful under the Authorization for the Use of Military Force, which provided the legal justification for the imprisonment of foreign fighters captured on overseas battlefields. The Supreme Court has said such detention is legal as long as "active hostilities" continue.

U.S. District Judge Royce Lamberth said in a 14-page opinion issued Thursday that it was clear that hostilities still persist.

For many, however, the very existence of the offshore prison remains an absurdy and affront to the U.S. Constitution, international theories of jurisprudence, and recognized humamn rights standards.

As Noah Feldman, a columnist for Bloomberg wrote on Thursday, "more than 50 [prisoners] remain in legal limbo, treated as permanent prisoners of war in a conflict that has no way to end. Their detention calls into question the basic ideas of due process, no matter what legal justification the federal government gives for it."

In the long run, continues Feldman, the legal system that has enabled the U.S. government to hold these men not only defies logic, but actually undermines the legitimacy of the entire justice system. He concludes:

The U.S. government says it's within its rights to keep them as prisoners of war in the conflict with al-Qaida. But the POW rules assume a conflict between international parties that might conceivably be ended by a peace treaty. There will be no such end to the legal conflict between al-Qaida and the U.S. That means the detainees can be held forever.

This situation emphasizes how unsatisfying it is to rely on wartime detention power, as the administration has done with the Guantanamo inmates. Deep down, the legal system knows the reasoning is doubtful, based as it is on a creative theory of unilateral war. As long as the detention persists -- which could be indefinitely -- it'll remain a stain on the rule of law.

If Obama fails to close Guantanamo, it won't just be a defeat for him. It's a defeat for law itself.