The first article I published after law school was a little piece in the January 2006 issue of the Journal of National Security Law & Policy, focusing on the then-hypothetical questions of when wars “end” for constitutional purposes — and, as importantly, who decides. As that article argued, although courts had routinely decided when wars began and ended for purposes of specific federal statutes (the Supreme Court has another such case this Term), the constitutional question is, according to the Supreme Court’s (deeply problematic) 1948 decision in Ludecke v. Watkins, apparently reserved to the political branches.

That article weighed heavily on my mind as I read through the government’s response to the latest round of Guantánamo habeas litigation, in which the few remaining Taliban detainees have sought to challenge the continuing legal basis for their detention in light of a series of statements by President Obama that the “combat mission” in Afghanistan “has ended.” As attorneys for Taliban detainee Mukhtar al-Warafi have argued, if the Executive Branch has publicly taken the position that the war in Afghanistan is, indeed, over, then it can no longer claim the authority to hold detainees captured in and as part of that armed conflict — at least under the 2001 Authorization for the Use of Military Force. (For more of the background, see Marty’s thorough post from late February.)

The government’s recently declassified brief, as I elaborate upon below, is quite remarkable in two different — but related — respects: First, it all-but disavows President Obama’s various public statements on the matter (by purporting to construe them in light of factual representations and legal arguments made by Executive Branch officials who report to President Obama). Second, in the process, it effectively encourages the very judicial review I had always understood Ludecke to forswear, since it asks the court to dismiss President Obama’s rhetoric in favor of a factual and legal assessment about what’s actually true on the ground. Thus, whatever one thinks of the merits of such end-of-hostilities claims (that is, of the legal sufficiency of the government’s assessment), the government’s argument, in principle, suggests that courts should be the ones to resolve them, however deferentially.

I.  The Government’s Response in Warafi

The very first sentence of the government’s response tells most of the story: “As a matter of international and domestic law, the United States currently remains in an armed conflict with al-Qaeda, [the] Taliban, and associated forces.” Indeed, if recent media reports are to be believed, this assertion seems at least superficially convincing on both factual and legal grounds, the President’s repeated rhetoric to the contrary notwithstanding. And as the government elaborated, “Contrary to Petitioner’s claims, the record here, as supported by a declaration from a senior military official describing the current state of hostilities in Afghanistan, establishes that active hostilities against al-Qaeda, [the] Taliban, associated forces have not ceased.” Of course, this argument assumes that the relevant question is whether hostilities have ceased, as opposed to whether the armed conflict has ceased, and the government nowhere defends why that is the relevant question (or what the test should be for reviewing that assertion). Indeed, it can hardly be the case that detention authority continues simply because (1) U.S. troops are stationed in Afghanistan; (2) U.S. troops are providing training and support to Afghan forces engaged in hostilities with the Taliban; or (3) U.S. troops are periodically subject to sporadic attacks from Taliban fighters. Presumably, there has to be something more for detention authority to persist — which, as Marty explained back in February, is the really interesting issue. For present purposes, though, the government ducks the question, suggesting (however implicitly) that, whatever the standard, the current situation meets it.

Critically, it is only after setting forth these factual and legal predicates that the government turns to Ludecke, holding out the 1948 decision as “a separate reason” why al-Warafi’s claims must fail. And Ludecke applies, the government argues, because President Obama didn’t declare that the war against the Taliban had ended. “Rather, the President’s public statements made clear that, in light of the continuing threat faced by the United States in Afghanistan, counterterrorism and other military operations would continue even after the end of the combat mission. Simply put, the President’s statements signify a transition in United State military operations, not a cessation.” (Again, this assumes that the relevant question is the continuing pendency of “military operations,” or “hostilities,” and not “armed conflict.”)

The brief goes on to elaborate upon both of these threads in detail, much (albeit not most) of which is unclassified. But at its core, the government’s position reduces to three interrelated points: (1) in reality, fighting against the Taliban sufficient to trigger detention authority remains very much ongoing; (2) courts shouldn’t second-guess the Executive Branch’s determinations in this regard; and (3) courts should ignore President Obama’s statements that some have read as suggesting to the contrary, because he didn’t really mean what he said (or, at least, we didn’t understand what he meant).

II.  Why the Government’s Response Matters

Let me start at the end: I actually think the government ought to prevail on the merits, at least at this point, in al-Warafi. My view in this regard has almost everything to do with what appears to be true on the ground, and I’m willing to accept not just the unclassified factual assertions made by the government in its response, but the widespread media reports of ongoing U.S. military operations against the Taliban in Afghanistan. The harder question will arise, as Marty rightly foretold, when (if?) we get to a point where, even if there’s still scattershot fighting in Afghanistan, or sustained fighting between the government of Afghanistan and the Taliban, there is no longer an “armed conflict” between the United States and the Taliban for purposes of international law. At that point, it will matter quite a lot whether detention authority expires at the end of the “armed conflict,” or the end of “hostilities.” I don’t think we’re there yet (although it’s worth reading al-Warafi’s motion carefully for the argument that we are).

Readers needn’t agree with me on this point, though, to understand why the government’s position is so problematic. After all, I fail to see how the question can be conclusively settled by the Executive Branch (as the government argues Ludecke requires) if the government’s position is that courts can and should construe the President’s statements narrowly in light of the ongoing factual and legal reality, whatever that reality is. Otherwise, why shouldn’t the President’s statements be given more significance than factual assertions by a military commander (who reports to the President) or legal arguments by a Justice Department lawyer (who reports to the President). That is to say, if Ludecke really means that courts must blindly defer to any pronouncements by the Executive Branch, it seems to me that al-Warafi is onto something in arguing that President Obama’s statements should be taken literally (and conclusively).

But of course, that’s not what Ludecke should be understood to mean. Even under a broad reading of Ludeckesomeone has to decide whether the political branches have spoken on the matter (and what they have said). Thus, in the Ludecke sequel — the Supreme Court’s 1952 decision in United States ex rel. Jaegeler v. Carusi — an 8-0 Court had no problem taking note of a joint resolution approved by Congress in October 1951 that formally ended the war with Germany, or ordering relief as a result.

So too, here. The government’s argument is not really that the political branches have spoken clearly, and so the matter is settled by Ludecke; rather, the government’s argument is that the conditions on the ground inform and illuminate the President’s ambiguous public statements, in a manner that makes clear that hostilities, an armed conflict, and everything in between are very much ongoing. The government may be correct on that point, but it is necessarily asking the courts to conduct judicial review, and not avoid it, in order to rule in its favor. Frankly, I think that’s as it should be. But even if reasonable people disagree as to what kind of judicial review is normatively desirable in this context, it’s hard to see how the government can both disavow the legal impact of President Obama’s statements and disclaim judicial review in the same brief.

Don’t take my word for it, though. Just look at the last line of the government’s brief: “Petitioner’s motion to grant the petition for writ of habeas corpus should be denied,” that is, on the merits — and not dismissed because it is not justiciable.