What happens to Guantánamo Bay now that US forces have withdrawn from Afghanistan?
Afghanistan’s war has lasted over two decades. Former US Defense Secretary Donald Rumsfeld, one of its primary architects, died last month. And President Biden announced this week that the US military presence in Afghanistan will conclude on Aug. 31, only days before the twentieth anniversary of the Sept. 11, 2001, terrorist attacks.
So how does this affect Gitmo? After all, the United States military prison in Guantánamo Bay, Cuba, was established to house captured enemy fighters in Afghanistan in the so-called War on Terror. What happens to Afghanistan’s prisoners of war once the fighting ends?
Here are five questions — and their answers — on what might happen to the Guantánamo Bay prison when the Afghan conflict concludes.
Guantánamo has kept roughly 800 people over the years, but now only 40 men remain, and nearly three-quarters of them have never faced criminal charges. They are referred to as “forever prisoners” and are being held eternally. Some have remained for nearly two decades.
Guantánamo’s legal basis is that, following 9/11, Congress issued a “authorization for use of military force” in 2001 to pursue individuals responsible for the attacks, including al-Qaida and the Taliban. This statute vests the president with broad authority during times of war, which the administration believes includes the authority to imprison prisoners without accusation or trial.
However, it is unknown when these powers would expire or what the parameters of war will be. Additionally, it is unclear whether the US can justify indefinite detention of prisoners as part of a larger, amorphous global fight against terror. As a result, the withdrawal of US soldiers from Afghanistan involves complex legal issues, such as whether a war may be considered ongoing once combatants leave the main battlefield and whether captives must be released following troop withdrawal.
“Without having troops in Afghanistan, it’s going to be harder for the government or deferential courts to say, ‘Well, yeah, you said the war was over, and also there are no troops in the field, and also nobody’s shooting, but the war remains ongoing,'” Guantánamo defense attorney Ben Farley explained. “It’s just going to be harder to say that with a plain face.”
Yes, litigation have been filed over these questions, and courts have traditionally refrained from considering explicitly whether these wide presidential war powers are geographically limited. Rather than that, courts have been able to cite the Afghanistan war as basis for detention. However, human rights campaigners and lawyers for detainees argue that a conflict must have defined boundaries in order to determine when it is done and it is time to free captives.
“One of the fraught questions for the past 20 years has been whether or not the war on terrorism extends beyond the borders of Afghanistan and nearby Pakistan,” Guantánamo defense counsel Michel Paradis explained. “Is the conflict in Afghanistan a war against al-Qaida and the Taliban? Or is it a broader fight on terrorism? Is this a battle against al-Qaida and anything that adheres to al-philosophy, Qaida’s against any entity that secedes from al-Qaida?”
Or has the war on terror devolved into a “rhetorical war,” comparable to the wars on drugs, poverty, and cancer, which do not carry prosecutorial powers such as indefinite detention?
“There are these pretty major questions,” Paradis, who now teaches at Columbia Law School, explained, “but those debates have largely been able to be sidestepped, if only because the war in Afghanistan has been ongoing.”
Guantánamo critics claim that it is illogical to argue that the war is done in terms of bringing troops home but continues in terms of keeping detainees seized by those troops.
Nonetheless, numerous Senate Republicans warn that releasing these convicts would jeopardize the country, and the Justice Department maintains that the US has the ability to hold alleged terrorists indefinitely.
“We have been and remain at war with al-Qaida,” Department of Justice attorney Stephen M. Elliott stated during a May hearing in United States District Court in Washington, D.C., in a case involving a former Afghan militia member held at Guantánamo since 2007.
Al-Qaida is “morphing and evolving,” Elliott said, and the United States’ “war on terrorism” continues.
Now that the United States has withdrawn from Afghanistan, Paradis believes Guantánamo detainees are drafting fresh legal motions that may eventually reach the Supreme Court.
“I can imagine there’ll be at least a few detainees saying that you can no longer hold me because the whole reason you’ve been holding me all this time, all these decades now, has been the claim that if I’m released, I will be a danger in the war in Afghanistan,” he said. “And without that, why are you still holding me?”
This is complicated by the fact that the US must locate countries willing to accept them, and some of the inmates come from collapsing states such as Yemen. However, President Biden has allowed at least six Guantánamo detainees for transfer to other countries since taking office.
Nonetheless, Guantánamo defense attorney Wells Dixon notes that just because transfers have been approved does not mean they will occur soon: “There are detainees in Guantánamo today who’ve been approved for transfer for more than a decade and they’re still in Guantánamo,” he explained.
Yes. As Paradis observes, “The more individuals who are cleared to be released, the easier it is to close Guantánamo, because the detainee population gets smaller and smaller every day.”
Nevertheless, the Justice Department is working against the Biden administration by opposing legal motions made by Gitmo detainees, according to Dixon, who is also a senior staff attorney with the Center for Constitutional Rights.
“Why does the United States government continue to reflexively fight detainee cases, given the withdrawal of troops from Afghanistan and the declarations from the president that the conflict is ending?” Dixon enquired. “If you consider the president’s mandate to close the prison and you look at what the Department of Justice and other agencies are doing, they’re squarely at odds with each other.”
However, as the legal case for indefinite detention of Gitmo detainees becomes more tenuous as US troops withdraw from Afghanistan, Biden and the Justice Department may finally come together, possibly resulting in the eventual closure of Guantánamo’s military prison.
With the United States’ exit from Afghanistan, “I believe you will see a lot of pressure put on the administration and the government more broadly in litigation, arguing that the armed conflict has ended and detention authority has evaporated,” said Farley, the Guantánamo defense attorney.