Speaking at the National Defense University one year ago, US President Barack Obama pledged to end the global war on terror. Meanwhile, as US combat operations in Afghanistan wind down and the core of al-Qaeda deteriorates, the predicate for this armed conflict – the longest in the nation’s history – has worn increasingly thin.
Lawmakers, accordingly, are exploring whether to create a new legal authority that would maintain a wartime approach to combating future terrorist threats. The current law – the 2001 Authorization for Use of Military Force – focused specifically on the perpetrators of the 9/11 attacks. This debate suggests the struggle ahead, as the US government seeks to wean itself from its addiction to the war model it developed in fighting international terrorism.
The plight of the remaining 149 detainees at Guantanamo will provide an important test of the United States’ commitment to returning to a peace-time framework in accordance with international law.
After 9/11, the US elected to detain prisoners at Guantanamo and elsewhere, as enemy combatants under the international law of armed conflict, rather than treating them as criminal suspects in a law enforcement operation. This choice had significant legal consequences. On the one hand, it empowered the US to hold detainees without charging them criminally. On the other hand, it meant that once the war ended, the US had to promptly repatriate the prisoners, except for the relatively few whom it could try for war crimes.
US stretching international law
For years, the US has reaped the benefits of this power-enhancing function of international law by holding detainees without charge. The US, however, appears resistant to accepting the legal consequences that flow from a war ending.
Administration critics argue that the exchange sends the troubling message that the US will compromise with terrorists, while returning dangerous fighters to the enemy.
The Obama administration desperately wants to close the Guantanamo detention facility, which the president maintains undermines US values and reputation. But the president remains equivocal about what should happen to the remaining detainees when the prison closes. From the outset, Obama acknowledged a category of detainees who “cannot be prosecuted yet who pose a clear danger to the American people”.
In a recent address at West Point, Obama noted that “American values and legal traditions don’t permit the indefinite detention of people beyond our borders”. But he has yet to expressly accept that international law mandates the release of all detainees when the war is over, regardless whether the detainees are held at Guantanamo or moved to the US.
Many lawmakers seem openly hostile to the legal requirement that wartime prisoners must be returned when the war is over. Instead, they continue to erect hurdles designed to restrict the president’s authority to transfer prisoners from Guantanamo. While the president had previously adhered to these restrictions, he refused to comply with the requirement that he notify Congress beforehand in the recent exchange of a US soldier, Sgt Bowe Bergdahl, for five Taliban prisoners. Administration critics argue that the exchange sends the troubling message that the US will compromise with terrorists, while returning dangerous fighters to the enemy.
Call for consistency
These critics have focused on the president’s failure to follow the advance notice requirement. But they ignore that the US would have been obligated to return the Taliban detainees in the near future anyway, certainly when US troops withdraw from Afghanistan. More troubling, their attacks on Obama reflect a continued effort to replace the traditional international law requirement of releasing prisoners at the end of a war with ad hoc predictions about a particular prisoner’s future dangerousness.
This legal requirement not only serves as the bedrock of a regime that exempts detention during wartime from the ordinary prohibition against indefinite imprisonment without charge. It also protects US service members as much as enemy soldiers. Failure to return prisoners when war ends will put US soldiers at risk of being stranded in legal limbo in future conflicts.
The US position that suspected terrorists can be detained under the law of armed conflict remains highly controversial. Here, the US is virtually alone among its key allies, who continue to treat terrorism exclusively as a law enforcement matter. But assuming the US approach is valid, it should still be internally consistent. That means the US must take the bitter with the sweet, and recognise that the same international legal principles that have allowed it to hold detainees in the war on terror will obligate it to free those detainees who remain in its custody when the war is over.
Jonathan Hafetz is Associate Professor of Law at Seton Hall University School of Law and the author, most recently, of Habeas Corpus after 9/11: Confronting America’s New Global Detention System.