Revisiting Warafi

As others have already noted, D.C. District Court Judge Royce Lamberth held last week that because “fighting continues” between U.S., Taliban and Al Qaeda forces in Afghanistan, Taliban prisoners held at Guantanamo may still be detained under the domestic statute (AUMF) authorizing their detention. I’ve written here and elsewhere about the propriety of the underlying legal theory in the case so will try not to rehash those points here. But in addition to noting what I think the court got wrong in its analysis, I want to highlight the serious significance of what it got right.

What the court got wrong. Having rejected both parties’ erroneous position (more on which below) that the President’s view is determinative of whether or not a conflict sufficient to justify detention continues, the court then spends little more than a paragraph explaining why the AUMF should be understood to authorize the detention of prisoners captured by the United States in Afghanistan as long as any “fighting continue[s].” What should the court have said? One reasonable approach would have been as follows. First, that Congress, the Supreme Court (Hamdi), and the President have all recognized that the meaning of the AUMF is informed and controlled by the international law of armed conflict. Second, that the Supreme Court relied on the law of international armed conflict (GCIII, Art. 118) in interpreting the scope of the AUMF’s detention authority; and whether or not the Supreme Court was right in identifying Art. 118 as the relevant international law, the district court was bound by its judgment in that regard. Third, that Art. 118 requires that prisoners “shall be released and repatriated without delay after the cessation of active hostilities.” Fourth, that while there is some uncertainty what counts as “active hostilities” in an international armed conflict sense, it is inconsistent with the manifest purpose of Article 118 (made clear in Geneva Commentary to hasten the return of war prisoners given the hardship to all involved) to construe this provision as requiring conditions of zero violence before the repatriation obligation is triggered. Fifth, the continuation of “active hostilities” under Article 118 cannot be established merely by introducing official statements of the existence of hostilities, the presence of U.S. troops in country (which describes the relationship of the United States to dozens of countries around the world), the maintenance of a right of self-defense if attacked (which exists whether or not any hostilities are ongoing), or acts of violence between actors in country other than the parties to the armed conflict. What matters is evidence of actual, repeated, non-trivial incidents of violence between the parties to the conflict.

While I can imagine the court reaching the same result by this metric – i.e. that active hostilities in Afghanistan continue – and I can imagine other reasonable approaches to this analysis that reach varied conclusions (see here), the approach that Judge Lamberth took – ignoring international law altogether – is not one of them.

All that said, what the court got right here is, I think, a great deal more important. In a circuit notorious for embracing political question doctrine – the idea that certain questions of law are beyond the purview of the courts entirely – and contrary to the position taken by both the detainee and the government, the court was categorical in its determination that it is up to the court, not the President, to decide whether active hostilities exist. Citing Supreme Court decisions Hamdi and Boumediene in support, the court reasoned that “habeas rights that lived and died by the unexamined word of the political branches would be fatally flawed.” Rather, embracing the language of ordinary administrative law, what courts must look to is record evidence.

This case will be appealed. The facts on the ground in Afghanistan will continue to evolve. And it is now a great deal more likely than it was before Warafi was decided that a court will someday conclude as a matter of law that the authority to continue to hold some Guantanamo detainees has come to an end.