The Supreme Court has previously stated that the U.S. can only hold prisoners captured during a war for as long as that war continues.
Guantanamo Bay detainees Faez Mohammed Ahmed al-Kandari and Muktar Yahya Najee al-Warafi are arguing before the court that President Barack Obama’s declaration in December constitutes an official end to the Afghanistan war, and that if the war really is over, there’s no reason why they shouldn’t go free, The Associated Press reports.
Faez, a Kuwaiti, was sent to Gitmo following the Tora Bora battle and as of June 18 has been held for 13 years. The Guantanamo Review Task Force in 2010 found that Faez operated as a close advisor to Osama bin Laden and was himself a religious figurehead. He also, according to the report, had advance knowledge of the September 11 attacks. Muktar ended up in the facility after a judge found he had aided the Taliban as a member of Osama bin Laden’s 55th Arab Brigade.
While outside legal experts seem to think that the detainees have picked a valid line of argumentation, whether the Obama administration has actually declared an end to the war is up for debate.
Lawyers for Faez and Muktar cited Obama’s December 28 statement that “our combat mission in Afghanistan is ending” to argue that “there is no longer a battlefield in Afghanistan in which the United States is sustaining active combat operations.” With not battlefield, the justification for holding detainees under the 2001 Authorization for Use of Military Force suddenly evaporates.
Not so fast, say Department of Justice (DOJ) lawyers. Not only do active hostilities persist between the U.S. and organizations like al-Qaida and the Taliban, but presidential statements have not indicated an end to the war, but rather a transition to a less active military presence. Additionally, only Congress and the President have the authority to determine the status of the war, not the courts, DOJ lawyers noted.
Last week, the Obama administration transferred 6 more detainees out of Gitmo to Oman, leaving the total prison population at 116. (RELATED: Bin Laden’s Entourage A Part Of Latest Gitmo Transfer)
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