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Obama Promised to Close Gitmo. The Troop Withdrawal May Finally Force Him to Do So.

Getty Images/Mark Wilson

President Barack Obama’s decision to release five Guantánamo prisoners in exchange for American soldier Bowe Bergdahl drew immediate bipartisan criticism. Lawmakers, slighted by being left out of the process, accused him of breaking the law, negotiating with terrorists, and endangering U.S. lives both at home and abroad. Despite the uproar, the repatriation of the five men was legally inevitable in the coming months. The already fragile legal justification for holding prisoners that have not been found guilty of a crime will unravel in the upcoming months as U.S. troops withdraw from Afghanistan.

The third Geneva Convention allows states that are engaged in an armed conflict to take their enemies as prisoners and hold them without charge. The original intention of this provision was actually humanitarian—better to detain the enemy than kill them. But this law is now the crux of the legal justification to indefinitely detain the remaining 149 prisoners at Guantánamo Bay. However, international law also requires states to release and repatriate prisoners “without delay after the cessation of active hostilities,” unless they are convicted of criminal activity.

Obama recently announced his plan to pull out all but 9,800 American troops from Afghanistan by the end of 2014, effectively ending the thirteen-year war. According to international law, an active conflict is defined by the intensity of fighting and the organization of the fighters. The vague wording of the law, coupled with the fact that a small U.S. presence will remain in Afghanistan, offers a potential legal loophole in which the conflict could be defined as ongoing after 2014. But it's a weak argument, and there is serious political incentive to declare an end to the war. The straightforward interpretation of international law is that the end of the war means the end of Guantánamo, a promise that defined Obama's 2008 campaign. The actual interpretation is sure to be hazier.

Advocates of continued detention say that the end of the conflict in Afghanistan does not mark the end of the global war on terror, which includes nonconventional warfare in places like Yemen, Somalia, and Pakistan. The U.S. has never formally declared war in these places, and it is unlikely that there will be a declaration of the end of this war in the near future. As Steve Coll wrote in The New Yorker last year, “As long as there are bands of violent Islamic radicals anywhere in the world who find it attractive to call themselves Al Qaeda, a formal state of war may exist between Al Qaeda and America. The Hundred Years War could seem a brief skirmish in comparison.”

John Yoo, the former Justice Department official who authored the legal justification for enhanced interrogation techniques, including waterboarding, said, “The conflict with the Taliban regime and Al Qaeda may continue. The withdrawal of combat units from Afghanistan does not mean hostilities are over.” He added that it would be a mistake for the Obama administration to declare the war over and that the U.S. should continue to hold the remaining detainees in Guantánamo.

Putting the notion of a forever war aside, U.S. efforts in Afghanistan were decisively aimed at overthrowing the Taliban in 2001, and thwarting their subsequent efforts to wage an insurgency against the U.S.-installed government there. Although the counterinsurgency fight in Afghanistan is encompassed in the larger war on terror, there is an important distinction between Guantánamo’s Taliban and Al Qaeda prisoners.

“If you’re arresting and holding people for terrorism, terrorism is a crime both domestically and internationally, and you should deal with it criminally,” said Thomas Wilner, a senior lawyer at Shearman & Sterling, who also provided counsel to many Guantánamo detainees. “There’s a difference between international terrorists who are bent on killing civilians and the Taliban, who are fighting for control over the country.”

For example, Khairullah Khairkhwa, one of the five men released last week’s prisoner exchange, held several positions in the Taliban government between 1995 and 2001. He fled to Pakistan after the fall of the Taliban, was picked up near the border by the Pakistani police, and ultimately transferred into Americans custody. During his twelve-year stay at Guantánamo, Khairkhwa admitted Taliban involvement, but vehemently denied participating in terrorist activity; the U.S. has been unable to provide evidence showing otherwise. 

According to the ACLU, the Obama administration has identified 38 of the 149 remaining prisoners as still being a threat, but “not feasible for prosecution.” The Justice Department says that under the Authorization for the Use of Force (AUMF), passed in 2001, these prisoners can legally remain in custody.

"The government has said it must continue to hold some detainees because they are simply too dangerous to let go, but cannot be tried because the evidence against them is tainted. I have seen the evidence against some of these men, and it is not that it is 'tainted' but that it is so skimpy and unreliable, it would never hold up in court," said Wilner.

A key part of the argument for continued detention of the 38 prisoners in legal limbo is the assumption that if released, they will return to the battlefield to attack the U.S. and U.S. interests. A recently declassified intelligence report says that 17 percent of former Guantánamo detainees have engaged in terrorist activity since their release. Peter Bergen of the New American Foundation estimates a more conservative recidivism rate of 2.5 percent. Marc Denbeaux, a professor at Seton Hall University, calls the government’s numbers inflated, inconsistent, and unverifiable, and points to the fact that domestic recidivism rates are considerably higher, but cannot be used to indefinitely detain people.

Regardless of the numbers, the legal argument remains the same. While at war, it is legal to imprison individuals that pose a potential threat on the battlefield. When the war ends, so ends the legality of their detention unless they are charged with a crime. There is no law that allows detention as a preventative manner.  

Correction: A previous version of this story stated that Thomas Wilner provided counsel to two Guantánamo detainees. He has represented 12 detainees and provided counsel to hundreds.