The war in Afghanistan has lasted nearly 20 years. One of its key architects, former U.S. Defense Secretary Donald Rumsfeld, died last month. And this week, President Biden said the U.S. military operation there will end on Aug. 31, just shy of the twentieth anniversary of the Sept. 11, 2001, terrorist attacks.
So, what does that mean for Gitmo? After all, the U.S. military prison in Guantánamo Bay, Cuba, was created to hold enemy fighters captured in Afghanistan and the so-called War on Terror. If the Afghanistan conflict ends, what happens to its prisoners of war?
Here are five questions — and answers — for what might happen to the prison at Guantánamo as the conflict in Afghanistan ends.
First, remind me: How many prisoners are left at Gitmo?
Over the years, Guantánamo has held nearly 800 people, but now just 40 men are imprisoned there, and almost three-quarters of them have never been criminally charged. They’re known as “forever prisoners” and they’re being detained indefinitely. Some have been there for almost two decades.
How has the U.S. government justified holding them without charging them with any crimes?
The legal foundation of Guantánamo is that after 9/11, Congress passed an “authorization for use of military force” in 2001 to go after whomever was responsible for those attacks, like al-Qaida and the Taliban. That law gives the president sweeping powers during wartime, and the government claims that includes the ability to detain prisoners without charge or trial.
But it’s unclear when those powers expire and what the parameters of war are. It’s also not clear whether the U.S. can justify holding prisoners forever due to a larger, amorphous global war on terror. As a result, the withdrawal of U.S. troops from Afghanistan raises complicated legal questions, such as whether a war can still be considered ongoing once fighters leave the main battlefield, and whether prisoners must be freed following a troop withdrawal.
“Without having troops in Afghanistan, it’s going to be harder for the government or deferential courts to say, ‘Well, yeah, you said the war was over, and also there are no troops in the field, and also nobody’s shooting, but the war remains ongoing,'” said Guantánamo defense attorney Ben Farley. “It’s just going to be harder to say that with a plain face.”
Have any courts weighed in on this?
Yes, lawsuits have been filed over these issues, and courts have generally avoided specifically addressing whether these vast presidential war powers are specific to a certain geography. Instead, courts have been able to point to the war in Afghanistan as justification for holding detainees. But human rights activists and detainees’ lawyers say a war must have defined boundaries so we know when it’s over and time to release prisoners.
“One of the fraught questions for the past 20 years has been whether or not the war on terrorism extends beyond the borders of Afghanistan and nearby Pakistan,” said Guantánamo defense attorney Michel Paradis. “Is the war a war against al-Qaida and the Taliban in Afghanistan? Or is it a war against terrorism broadly? Is it a war against al-Qaida and anything that shares al-Qaida’s ideology, any organization that splits off from al-Qaida?”
Or has the war on terror become a “rhetorical war,” he added, one similar to the war on drugs, war on poverty and war on cancer, which do not convey prosecutorial powers such as jailing people indefinitely?
“There are these pretty major questions,” said Paradis, who also teaches at Columbia Law School, “but those debates have largely been able to be sidestepped, if only because the war in Afghanistan has been ongoing.”
Guantánamo’s critics say it’s nonsensical to argue that the war is over for purposes of bringing troops home, but the war continues for purposes 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 U.S. has authority to indefinitely detain accused terrorists.
“We have been and remain at war with al-Qaida,” said DOJ attorney Stephen M. Elliott at a May hearing in U.S. District Court in Washington, D.C., in a case involving a former Afghan militia member who has been held at Guantánamo since 2007.
Al-Qaida is “morphing and evolving,” Elliott said, and the U.S. “war on terrorism” continues.
Now that the U.S. is leaving Afghanistan, Paradis said, he assumes Guantánamo prisoners are preparing new legal motions that will eventually land before the Supreme Court.
“I can imagine there’ll be at least a few detainees saying that you can no longer hold me because the whole reason you’ve been holding me all this time, all these decades now, has been the claim that if I’m released, I will be a danger in the war in Afghanistan,” he said. “And without that, why are you still holding me?”
What happens if the prisoners win that argument?
That’s tricky because the U.S. has to find countries to take them, and some of the prisoners are from collapsed countries like Yemen. But since President Biden entered office, at least six Guantánamo detainees have been cleared for transfer to other countries.
Still, Guantánamo defense attorney Wells Dixon points out that just because transfers have been approved does not mean they’re imminent: “There are detainees in Guantánamo today who’ve been approved for transfer for more than a decade and they’re still in Guantánamo,” he said.
Still, does clearing prisoners for release lay the groundwork for emptying Gitmo’s prison and shutting it down?
Yes. As Paradis notes: “The more individuals who are cleared to be released, the easier it is to close Guantánamo, because the detainee population gets smaller and smaller every day.”
Yet the Justice Department is at cross purposes with the Biden administration by opposing legal motions filed by Gitmo prisoners, said Dixon, who is also a senior staff attorney at the Center for Constitutional Rights.
“Why does the United States government continue to reflexively fight detainee cases, given the withdrawal of troops from Afghanistan and the declarations from the president that the conflict is ending?” Dixon asked. “If you consider the president’s mandate to close the prison and you look at what the Department of Justice and other agencies are doing, they’re squarely at odds with each other.”
But with the legal argument for indefinitely detaining Gitmo prisoners on shakier ground as U.S. troops leave Afghanistan, Biden and the Justice Department could finally get on the same page, possibly leading to the eventual closure of Guantánamo’s military prison.
With the U.S. withdrawal from Afghanistan, “I think what you’ll see is a lot of pressure put on the administration, and on the government more generally in litigation, arguing that the armed conflict has ended,” said Farley, the Guantánamo defense attorney, “and detention authority has evaporated.”
