One War Begins, Another Ends?

Yesterday, as members of Congress continued to debate the need for a new AUMF against ISIS, lawyers for Guantanamo detainee Al Warafi have filed a new habeas petition to the D.C. District Court, arguing that the basis for detaining Warafi evaporated when the war in the Afghanistan ended. Specifically, the petition argues that the administration has conceded in prior litigation that the basis for Warafi’s detention was his membership in the Taliban. In the past, Warafi had argued in that he was a medic for the Taliban and his continued detention violated IHL’s rules on the treatment of medics. That argument was ultimately rejected by a district court which concluded that Warafi’s status was not analogous to that of a medic in a traditional army.

Warafi’s new argument takes as its starting point that last legal conclusion. Since Warafi was deemed detainable as a regular member of the Taliban, the authority for his continued detention evaporated with the conclusion of the war in the Afghanistan.

How do we know that the war in Afghanistan is over? On this point, Warafi’s petiton relies exclusively on Obama’s own statements that the conduct of hostilities in Afghanistan is over:

On December 15, 2014, President Obama stated that “[t]his month, after more than 13 years, our combat mission in Afghanistan will be over,” and “[t]his month, America’s war in Afghanistan will come to a responsible end.” Exhibit A, p. 2. Then, in the State of the Union Address on January 20, 2015, the President stated, without any qualifications or conditions, that “our combat mission in Afghanistan is over.” Exhibit B, p. 1.

These pronouncements had been foreshadowed during the preceding two years by repeated presidential statements that the United States’ war in Afghanistan would be ended, and its combat mission would be terminated, by the end of 2014. On February 12, 2013, President Obama declared in the State of the Union Address that “[b]y the end of [2014], our war in Afghanistan will be over.” Exhibit C, p. 5. On May 23, 2013, he stated that “[t]he Afghan war is coming to an end.” Exhibit D, p. 7. On November 25, 2013, he stated that ‘[t]he war in Afghanistan will end next year.” Exhibit E, p. 1. On December 20, 2013, he stated that, “[b]y the end of next year, the war in Afghanistan will be over.” Exhibit F, p. 2. In the State of the Union Address on January 28, 2014, he repeated that “we will complete our mission there [Afghanistan] by the end of this year, and America’s longest war will finally be over.” Exhibit G, p. 6. The President followed up with a prepared statement on May 27, 2014, that “this year, we will bring America’s longest war to a responsible end,” that “this is the year we will conclude our combat mission in Afghanistan,” and that “America’s combat mission [in Afghanistan] will be over by the end of this year.” Exhibit H, p. 1. On December 28, 2014, the United States Case 1:09-cv-02368-RCL Document 80 Filed 02/26/15 Page 3 of 7- 4 – marked the end of the war in Afghanistan with a ceremony in Kabul.1 Exhibit I. On that date, President Obama released a statement that “the ceremony in Kabul marks a milestone for our country” because “our combat mission in Afghanistan is ending, and the longest war in American history is coming to a responsible conclusion.” Id.

The argument relies exclusively on the President’s own statements regarding the conduct of hostilities, rather than engage in an underlying assessment of the actual situation on the ground. This strategy seems designed to appeal to the D.C. Circuit, which might be more inclined (than another court) to view the President’s assessment as dispositive of the issue:

The D.C. Circuit has also stated that the “determination of when hostilities have ceased is a political decision, and we defer to the Executive’s opinion on the matter, at least in the absence of an authoritative congressional declaration purporting to terminate the war.” Al-Bihani v. Obama, 590 F.3d 866, 874 (D.C. Cir. 2010). “Whether an armed conflict has ended is a question left exclusively to the political branches.” Al Maqaleh v. Hagel, 738 F.3d 312, 330 (D.C. Cir. 2013), cert. dismissed sub nom. Al-Maqaleh v. Hagel, 135 S. Ct. 782 (2014). Under these precedents, a conflict is over when the President says it is over.

The argument also suggests an estoppel point which goes unexpressed in the petition: since the administration has conceded that the war is over in public statements, it is estopped from arguing before the judiciary that the war continues (for the purposes of justifying Wafari’s continued detention).

One issue is whether Obama’s multiple statements regarding the conclusion of “our combat mission in Afghanistan” is the same thing as saying that hostilities there are over. Does the former imply the latter? It seems like a viable and legitimate inference to draw, although none of the Obama quotes in the petition include the actual words: “the hostilities are over.” Is that distinction important? Or would it be overly legalistic to insist that the political branch use the phrase “hostilities” in its public pronouncements?

The petition also tees up another important legal issue. Is there a “wind up” period after the conclusion of hostilities when continued status-based detention is still justified, or must law-of-war detainees be released immediately upon the conclusion of hostilities? As this ICRC analysis notes, the Hague Regulations once required that POWs be released as soon as possible after the conclusion of peace, but the Third Geneva Convention requires that “Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities” (article 118). Most legal experts assume that it was significant that the codified law moved from a “conclusion of peace” standard to a “conclusion of hostilities” standard, because the latter requires repatriation of soldiers after fighting ends, even if there is a delay in negotiating a formal state of peace. Also, article 118 of the Third Geneva Convention requires release “without delay” as opposed to the older and looser requirement of “as soon as possible,” which is vague and somewhat indeterminate. So the law has moved over time to require quicker repatriation of captured soldiers. Of course, this assumes that IAC principles of detention are the relevant principles governing Gitmo detention, which is itself a contested and controversial question.

Overall, the Warafi petition highlights that extinguishing or ending an armed conflict is often just as legally complex as declaring or authorizing an armed conflict. Both involve questions of inter-branch allocations of constitutional authority (Article I versus Article II of the US Constitution), as well as the relative value of public statements versus actual events on the ground.