At year’s end, I examined here the possible legal significance of the President’s declaration on December 28 that “our combat mission in Afghanistan is ending, and the longest war in American history is coming to a responsible conclusion.” I suggested that this “longest war” was in fact two wars, or armed conflicts–one against al Qaeda and the other against the Taliban–and that it might well be that the United States has now largely, perhaps entirely, ended all armed-conflict-specific operations against both enemies . . . with the singular exception of the continued detention of 120 or so individuals at Guantánamo. (This doesn’t mean that the U.S. has ended all military operations, or all counterterrorism activities, against these armed groups; but it does mean that the U.S. has minimized, and come close to eliminating altogether, the use of authorities that are permissible only in an armed conflict–in particular, status-based targeting, indefinite military detention, and arrests for violations of the laws of war.) The President did not quite say, however, that either of these two U.S. armed conflicts had, in fact, already ended. I surmised that the first occasion for testing the Executive’s views about such “end of war” questions would be in renewed habeas challenges to the detention of some GTMO detainees.
As for al Qaeda, I wrote:
Habeas counsel for some al Qaeda detainees at GTMO undoubtedly will soon begin to urge district court judges to hold that the AUMF detention authority with respect to such detainees has expired because (in the words of the President) “our combat mission in Afghanistan is ending, and the longest war in American history is coming to a responsible conclusion”–an argument that Justice O’Connor anticipated in her controlling opinion in Hamdi (542 U.S. at 521). In response, the Executive branch likely will argue that the U.S.’s armed conflict with al Qaeda continues, at least for the time being, and especially in Yemen, which is home to the majority of the remaining al Qaeda detainees.
But what about the armed conflict with the Taliban? Were the President’s remarks about the end of America’s “longest war” a reference to the end of that conflict? I wrote in December that new habeas challenges might also be the triggering event for the Executive branch to stake out a public position on the question–but that would depend on whether there are any detainees who remain held at GTMO solely because they were part of Taliban forces.
Well, there appears to be at least one such remaining detainee, Mukhtar al Warafi; and he has now brought such a renewed habeas challenge. The habeas courts have previously denied Warafi’s habeas claim on the ground that he was a part of Taliban forces, and thus could, under Hamdi, be detained until the end of hostilities. Warafi now argues that the authorization for his detention has lapsed because the conflict with the Taliban has ended–citing the President’s December 28 statement that “the longest war in American history is coming to a responsible conclusion,” and earlier presidential statements to the effect that “America’s longest war will finally be over” by the end of 2014.
There are at least four ways that the government might respond to Warafi’s new petition:
i. The government might transfer Warafi, a Yemeni national, to another nation before filing any substantive briefs. Warafi has long been cleared for transfer, and so presumably the administration has been making efforts to find another nation that will accept him (and any other Taliban detainees remaining at GTMO). This new petition might accelerate such efforts.
ii. The government might concede that the armed conflict is over, but argue that the AUMF affords it a sort of “wind down” authority, similar to the post-hostilities detention authority that the Supreme Court has sanctioned in the past (see Steve’s article on Ludecke), to enable it to make arrangements for Warafi’s transfer in a reasonably expeditious fashion, consistent with diplomatic realities.
iii. Depending on what the facts actually are about hostilities between the U.S. and the Taliban, the government might argue that, notwithstanding the President’s statements, the U.S.’s armed conflict with the Taliban has not in fact ended.
iv. Or, the government might argue that although the armed conflict has ended (because there are no longer sufficiently sustained and intense hostilities between the parties), lower-level hostilities continue between the U.S. and the Taliban, and such post-conflict hostilities are sufficient under the AUMF to justify continued detention of Warafi, in order to prevent him from returning to such hostilities. (On how the court might proceed if the government makes this last argument, see Jens Ohlin’s post here.)
What would happen in Warafi’s habeas case if the government proffers the third argument–that the armed conflict with the Taliban continues? As I wrote in my earlier post:
Let’s assume, however, that the issue remains a live one in the habeas litigation, and let’s further assume, for the sake of argument, that the U.S. argues to the court that the relevant armed conflict–with al Qaeda or with the Taliban, depending on the detainee–continues. The court would then be confronted with at least two fundamental questions: (i) What are the criteria for determining whether an armed conflict has ended, for purposes of international law (which in turn affects AUMF and other domestic-law authorities)? And (ii) who decides?
As for the substantive question of how to determine when the conflict has ended, well . . . it’s very complicated, to say the least. The intensity and regularity of hostilities between the relevant parties would certainly be important determinants. If, for example, the U.S. and the Taliban rarely exchange fire (or other forms of attack) for an extended period of time, it would become increasingly difficult to sustain the notion that the armed conflict continues between those parties.*** But beyond that, there’s no easy formula that explains where, exactly, to draw the line separating “war” from “the end of the conflict.” It’s important to clarify one thing, however: Statements of political leaders, such as the President’s assertion on Monday that “our combat mission in Afghanistan is ending, and the longest war in American history is coming to a responsible conclusion,” can certainly be relevant to the question of whether an armed conflict continues, but they are not determinative. By almost all accounts, the test under international law is an “objective” one, based upon the state of the actual hostilities between the parties. Obviously, then, the question of armed conflict vel non is not entirely within the control of one of those parties, such as the United States. If, for example, the Taliban were to continue to engage in regular, status-based strikes against U.S. forces in Afghanistan, that would likely result in a continuation of the armed conflict, notwithstanding the U.S.’s previous statements that the war is over. (And the converse is the case, too: Statements by one party, such as the U.S. Executive, that a noninternational armed conflict continues, does not make it so.)
As for the second question–who decides?–within the United States the “end of conflict” question is typically determined by the political branches. Habeas judges would likely pay a great deal of deference to the Executive branch, at least as to the question of what the facts “on the ground” are in terms of continuing hostilities between the relevant parties. It remains to be seen, however, whether those judges would be equally deferential in determining whether such facts do, or do not, add up to a continuation of the relevant armed conflict as a matter of international (and thus AUMF) law.