Attorneys for Mukhtar Yahia Naji al Warafi have filed their reply brief in the habeas action challenging al Warafi’s continued military detention at Guantánamo.  As I have previously explained, al Warafi argues that because he is detained as a member of the Taliban’s armed forces, and because the United States and the Taliban are no longer in an armed conflict with one another, the government’s domestic law authority to detain al Warafi has expired.

Now that the briefs are in, here are some thoughts on the questions the habeas judge, Royce Lamberth, will need to consider.

1.  Is the armed conflict over?

For the proposition that the U.S./Taliban armed conflict is over, al Warafi’s opening brief relies almost exclusively on presidential statements–principally upon the President’s declaration on December 28, 2014 that “our combat mission in Afghanistan is ending, and the longest war in American history is coming to a responsible conclusion.”  In his reply brief, al Warafi points to a more recent, and more categorical, statement:  On January 28, 2015, at a farewell event in honor of outgoing Secretary of Defense Hagel, and in the course of an address in tribute of Hagel, President Obama stated that “[t]oday, our troops are supporting Afghan forces [and t]hey continue to face risks”; but he also said this:  “After more than 13 years, our combat mission in Afghanistan is over, and America’s longest war has come to a responsible and honorable end.”  al Warafi seizes upon this latter statement as an official pronouncement by the President that the U.S.’s armed conflict with the Taliban is over.

More recently, however, DoD General Counsel Preston delivered a speech at the American Society of International Law on April 10, 2015, in which he expressly represented that the armed conflict between the U.S. and the Taliban is ongoing because the Taliban “has not relented, and significant armed violence continues.”  The pertinent passage of the speech was this, in which Preston actually invokes, and explains, the President’s December 28 statement:

Although our presence in [Afghanistan] has been reduced and our mission there is more limited, the fact is that active hostilities continue.  As a matter of international law, the United States remains in a state of armed conflict against the Taliban, al-Qa’ida and associated forces, and the 2001 AUMF continues to stand as statutory authority to use military force.

At the end of last year, the President made clear that “our combat mission in Afghanistan is ending, and the longest war in American history is coming to a responsible conclusion.”  As a part of this transition, we have drawn down our forces to roughly 10,000 – the fewest U.S. forces in Afghanistan in more than a decade. The U.S. military now has two missions in Afghanistan.  First, the United States is participating in the NATO non-combat mission of training, advising and assisting the Afghan National Security Forces.  Second, the United States continues to engage in counterterrorism activity in Afghanistan to target the remnants of al Qa’ida and prevent an al-Qa’ida resurgence or external plotting against the homeland or U.S. targets abroad.  With respect to the Taliban, U.S. forces will take appropriate measures against Taliban members who directly threaten U.S. and coalition forces in Afghanistan, or provide direct support to al-Qa’ida.  The use of force by the U.S. military in Afghanistan is now limited to circumstances in which using force is necessary to execute those two missions or to protect our personnel.

At the same time, our military operations in Afghanistan remain substantial.  Indeed, the President recently announced that U.S. force levels in Afghanistan will draw down more slowly than originally planned because Afghanistan remains a dangerous place.  It is sometimes said that the enemy gets a vote.  Taliban members continue to actively and directly threaten U.S. and coalition forces in Afghanistan, provide direct support to al-Qa’ida, and pose a strategic threat to the Afghan National Security Forces.  In response to these threats, U.S. forces are taking necessary and appropriate measures to keep the United States and U.S. forces safe and assist the Afghans.  In short, the enemy has not relented, and significant armed violence continues.

Two weeks after Preston’s speech, in its brief opposing al Warafi’s habeas petition, the Department of Justice offered the executive branch’s account of the alleged continuing, significant “armed violence” between the U.S. and the Taliban that is said to establish a continuing armed conflict (see pp. 14-16; some of that evidence is redacted and can only be seen by the judge, but some of it is described in the public version of the brief).

There is no dispute in the al Warafi litigation that (at a minimum) if the armed conflict with the Taliban continues, then the Executive retains the authority to detain al Warafi.  al Warafi argues that the President’s January 28 statement conclusively establishes–apparently as a matter of fact and law–that the armed conflict is over.  What about the Preston speech and the DOJ brief, which say otherwise?  al Warafi contends that those are “self-serving arguments” of Government lawyers, made after al Warafi’s motion was filed and in contradiction of the President’s statement, and that therefore the court should “disregard[]” them.

With all respect, this argument–that Preston and DOJ were speaking ultra vires, and contradicting the President’s own assessment–is fairly implausible.  For starters, the President’s remarks at the Hagel tribute were informal, and surely were not designed as any official, momentous statement about a fundamental shift in the legal status of the U.S.’s relationship to the Taliban.  It is likely that the President’s reference to the “longest war ha[ving] come to a responsible and honorable end” was but a colloquial way of saying that the U.S. combat mission in Afghanistan had fundamentally changed; and notably, the President did not say anything at all about “armed conflict,” which is (unlike “war”) the relevant metric under international law (and thus under the AUMF, as well).  To similar effect, in remarks at Arlington National Cemetery earlier this week, the President said that “[f]or many of us, this Memorial Day is especially meaningful; it is the first since our war in Afghanistan came to an end. Today is the first Memorial Day in 14 years that the United States is not engaged in a major ground war.”  The second sentence (not engaged in “a major ground war”) was almost certainly intended as a gloss on the first (“since our war in Afghanistan came to an end”); more to the point, the President said nothing about whether the continued fighting between the U.S. and the Taliban establishes a continuing armed conflict as a matter of law.

The Preston speech, more than ten weeks after the President’s January remarks, presumably was vetted very carefully within the interagency process and by officials and lawyers working at the National Security Council.  It would be shocking if Preston’s unambiguous statement–“As a matter of international law, the United States remains in a state of armed conflict against the Taliban”–did not reflect the President’s views on the relevant question.  Likewise, DOJ would have acted recklessly if it had filed an entire brief on the question without being assured that the views it was representing to the court were shared by the President–especially since al Warafi’s habeas petition is premised upon presidential statements.  To be sure, the DOJ brief did not address the President’s January 28 remarks–but that’s because al-Warafi had not yet invoked them.  Now that al-Warafi has relied upon the January 28 statement, presumably DOJ will explain to the court (in a supplemental filing or at oral argument) whether and how the President’s January statement reflects the President’s formal views on the legal question facing Judge Lamberth.

In any event, what DOJ argues about the President’s view on the question will not be determinative, either:  Even if the Executive branch says that an armed conflict continues, that does not necessarily make it so.  In this respect, al Warafi and the government share a common misconception:  They appear to agree that the end of the armed conflict depends on what U.S. political branch officials–especially the President–say about that question.  That’s not correct, however.  As Preston correctly noted in his speech, the existence of the armed conflict is a question of international law.  (See also the very first sentence of DOJ’s brief, which states that “[a]s a matter of international and domestic law, the United States currently remains in an armed conflict with . . . [the] Taliban.”)  Accordingly, it is a legal question that Judge Lamberth must address himself.  As I wrote earlier:

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 . . . .

It’s important to clarify one thing, however:  Statements of political leaders, such as the President’s assertion . . . 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, do[] not make it so.) . . . .

In support of its argument that the habeas judge must, in effect, rubber-stamp the executive’s determination on the existence of an “armed conflict,” the government quotes from Judge Henderson’s opinion for the Court of Appeals for the D.C. Circuit in the 2013 case of Maqaleh v. Gates that “[w]hether an armed conflict has ended is a question left exclusively to the political branches.”

In one practical sense, that statement from Maqaleh is correct:  The political branches can, in effect, guarantee the continuation of an armed conflict if they decide to engage in intense, sustained hostilities against an organized enemy force.  But insofar as Judge Henderson meant to say, instead, that only the political branches can determine whether an armed conflict exists–particularly where, as here, that question depends overwhelmingly on the nature and degree of the Taliban’s continued use of force–that would simply be wrong:  Courts are fully capable of assessing whether the legal standard has been satisfied under international law.

The cases Judge Henderson cited do not say otherwise; indeed, they all antedate the development in international law of the key concept of an “armed conflict.”  In Ludecke v. Watkins (1948), in particular, the relevant statutory detention authority–pursuant to the Alien Enemy Act–turned on whether the U.S. continued to be in a “declared war” with Germany.  The continued existence of that war, in turn, depended on whether the political branches had formally “brought the war with Germany to an end.”  “‘The state of war,’” Justice Frankfurter explained, “may be terminated by treaty or legislation or Presidential proclamation.  Whatever the mode, its termination is a political act.”  Because the political branches had not engaged in any such “political act,” the Court held that the declared war against Germany continued, even though there was no more fighting.  By contrast, whether the U.S. armed conflict with the Taliban continues does not depend upon a “political” act by the United States–instead, it depends upon the nature and extent of continuing hostilities, which is something Judge Lamberth himself can evaluate.  (For much more on the historical practice of courts assessing the existence of war, or hostilities, or armed conflicts, see Deborah Pearlstein’s comprehensive recent article.)

To be sure, in deciding whether an armed conflict continues, a court will likely pay a great deal of deference to the Executive branch’s assessment of the relevant facts, especially those concerning the nature of the use of force between the two parties.  It does not follow, however, that the court should be 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.

2.  Even if the armed conflict has ended, are there existing hostilities that might justify continued military detention?

Even if Judge Lamberth concludes that the armed conflict with the Taliban has ended, that would not necessarily mean that al-Bihani prevails.  The government has a backup argument, too:  DOJ argues (see pp. 20-23 of its brief) that regardless of whether the armed conflict has ended as a matter of international law, lower-level hostilities nevertheless continue between the U.S. and the Taliban; and, under international law, such post-conflict hostilities are sufficient to justify continued military detention of enemy forces, in order to prevent them from returning to such hostilities.*  This argument relies upon analogy to Article 118 of the Third Geneva Convention, which provides that “[p]risoners of war shall be released and repatriated without delay after the cessation of active hostilities.”  Justice O’Connor invoked Article 118 in her governing opinion in Hamdi, in support of the Court’s holding that the AUMF authorizes the detention of enemy forces “for the duration of . . . hostilities.”  As another D.C. Circuit panel explained in al Bihani v. Obama (2010), Article 118’s use of the term “active hostilities”–instead of “armed conflict” or “state of war”–“serves to distinguish the physical violence of war from the official beginning and end of a conflict, because fighting does not necessarily track formal timelines. . . .  The Conventions, in short, codify what common sense tells us must be true: release is only required when the fighting stops.”  [UPDATE:  Article 118 was, of course, written for purposes of an international armed conflict, between states.  Such a conflict generally does not end until all hostilities cease, since any hostilities at all between states establish a state of armed conflict.  Not so in a noninternational conflict however, the existence of which depends (at least in part) upon a certain intensity and duration of hostilities.  In a NIAC, that is–such as the conflict between the U.S. (and Afghanistan) and the Taliban–“active hostilities” can, and often will, continue beyond the end of the conflict, which is the point stressed by the court in al Bihani.  Many thanks to a couple of astute readers who prompted me to clarify this important distinction.]

In his reply brief, al-Warafi does not directly address the international law question of whether and when hostilities short of armed conflict can justify continued military detention.  But that, too, is a question of law that Judge Lamberth will have to address if he agrees with al Warafi that the armed conflict between the U.S. and the Taliban has ended, because (as the U.S. has argued, and as Justice O’Connor’s governing opinion in Hamdi explains) “longstanding law-of-war principles” properly inform the construction of what detention authorities are “necessary and appropriate” under the 2001 AUMF.  (See generally my post with Steve from the end of 2011.)


* This is, in a sense, the mirror image of the argument upon which the government prevailed in Ludecke.  In that case, the fighting had ended, but the political branches had not yet formally “brought the war with Germany to an end.”  In Justice Frankfurter’s words, “the guns [were] silent but the peace of Peace has not come”; and the legal question in that case (unlike this one) depended upon the latter question (whether there was a formal peace), rather than on the former (whether fighting continued).