Judge Lamberth handed down an opinion today denying the claim made by Guantnamo detainee al Mukhtar Yahia Naji al Warafi (discussed by Marty here and here) that the conflict with the Taliban has ended and therefore his ongoing detention is unlawful. The opinion is short and colorful, making a good read.
Three quick takeaways:
First, Judge Lamberth rejects the government’s claim that it, alone, gets to decide when the conflict ends. As he puts it, “[t]he notion that can hear habeas petitions insofar as they rule for the government on a potentially dispositive issue is, if anything, even more insidious than the notion that courts cannot decide the issue at all.”
Second, “speeches [are] not law.” Simply put, one has to look to more than the President’s speeches to determine whether or not hostilities continue.
Third – and this is where I think the opinion falters – Judge Lamberth says that detention is authorized under the 2001 Authorization to Use Military Force so long as “fighting continue[s].” And there is clearly at least some ongoing fighting between the U.S. and Taliban. But armed conflict requires a lot more than just mere fighting; the fighting need be of sufficient intensity and intensity to qualify. Presumably Judge Lamberth believes that detention under the AUMF is authorized under something less? But based on what, and why? The opinion does not explain.