My post from last Thursday has provoked a pair of letters-to-the-editor from lawyers for current and former Guantánamo detainees. Below the fold, I reprint them in full, and offer a (very brief) reply.
The first letter is from Sabin Willett:
Leaving aside the metaphysics of Ludecke and the justiciability of the question when actual hostilities have terminated, is there a more fundamental question? That is – who, precisely, is today’s “enemy” in whatever the current hostilities are – and is that enemy the same enemy of whom Al-Warafi is said to be a member? Al-Warafi was taken in a war against “those nations, organizations, or persons [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001,” or “harbored” such organizations or persons. According to the government, Al-Warafi associated with what amounted to the official force of the government of pre-war Afghanistan (the then-Taliban). The theory of our use of military force against him can only be that the Taliban with which he associated was either a nation that harbored the 9/11 attackers, or an organization that did, since I don’t believe the President ever determined that the “Taliban” attacked us on 9/11.
So the question is, do actual hostilities against that Taliban persist? The government doesn’t seem to think so – its brief says that Warafi’s last military act was to participate in the surrender of that organization, more than a decade ago.
Affiliation with the pre-war government of Afghanistan can hardly be a basis for continuing detention today, when Afghanistan is an ally, unless some powerful functional showing can be made that the Taliban “organization” was (a) an independently existing enemy then, and (b) is functionally the same today as it was a decade ago. If “actual hostilities” persist as long as some new fighter, with a new agenda, takes up the old brand in Afghanistan, then there will be nothing left of Hamdi’s animating principle, and Al-Warafi is at Guantanamo forever.
The second letter comes from Steve Truitt:
That we are engaged in hostilities with AQ etc. cannot be doubted. But that does not answer the question whether the war in which the prisoners were seized—an Article 2 war between two GC3 signatories the US and Afghanistan—continues today and it obviously does not. The “hostilities” referred to in GC3 must necessarily be applied in light of the war which gave rise to the capture. Thus the hostilities referred to in GC3 Article 109 is that between the contracting powers, not some other armed conflict.
I am not aware of any decision which addresses this rather obvious construction of GC3. Al Bihani (I think) brushes aside this concern and assumes, incorrectly I believe, that so long as some fighting continues by some combatants with the US that termination of captivity is not required by GC 3. Judge Robertson in his original Hamdan decision examined and rejected the two or three war argument. He rejected it and this was never disturbed by the Supreme Court on review.
As both letters illustrate, the question of whether there is, still, a non-international armed conflict between the United States and the 9/11-era Taliban (or its successors) remains very much a contested one, and one that may have very little to do whatsoever with whether (1) “hostilities” in some form remain ongoing in Afghanistan; or (2) U.S. combat forces remain deployed there.
There’s a lot more that can and should be said about these issues (some of which has already been said by Marty). For now, though, let me just note how much this underscores the importance of judicial review of such “end-of-war” claims–and why it might be a very big deal that the government’s own position in al-Warafi seems to recognize the need for at least some judicial role in these cases.