Even though President Joe Biden has finally extracted the United States from the forever war in Afghanistan, another uncomfortable legacy remains: the dozens of detainees at Guantanamo Bay.
In the coming days, attorneys told The Daily Beast that they plan to file motions in court arguing that the U.S. can no longer back up its reasons for detaining certain inmates now that President Biden has declared the war is over.
“He is supposedly being detained as an enemy combatant based on the war in Afghanistan,” said Mark Denbeaux, an attorney for Zayn al-Abidin Muhammad Husayn, the first person the CIA tortured as part of its torture program. “Now that that war is over… detaining him as an enemy combatant is over.”
Husayn, better known as Abu Zubaydah, was originally captured in Pakistan in 2002, and detained on suspicion that he was a member of al Qaeda. He was tortured at a CIA black site: waterboarded, holed up in a small box, savagely thrown against a concrete wall. Eventually, the U.S. transferred him to languish in Guantanamo Bay for 15 years, where he has remained since, without ever being charged.
Under the Geneva Convention Relative to the Treatment of Prisoners of War, prisoners of war must be repatriated “without delay after the cessation of active hostilities”—and those hostilities are over now, Denbeaux says.
Nearly 800 detainees have passed through Guantanamo Bay detention center, and Zubaydah is just one of 39 inmates currently being held there. His case, however, could have ripple effects among the remaining detainees, experts told The Daily Beast.
Hina Shamsi, the director of the ACLU’s National Security Project, also said that, with the end of the war, the U.S. government has to reassess Guantanamo Bay.
“At this point the legal basis for the government’s detention authority is decisively unraveling,” Shamsi told The Daily Beast. “And the government needs to see this as an opportunity to follow through on President Biden’s promise both to end Guantanamo but also ensure that, as the United States goes forward as we come out hopefully from this era of post-9/11 abuses, that our government centers rule of law, commitment to human rights, and responsible policies that safeguard our collective security.”
In all, 27 remaining detainees at Guantanamo Bay have never been charged with crimes, while a handful have already been recommended for transfer and repatriation to other countries, according to the ACLU.
But while the war in Afghanistan may be ostensibly over, ending detention at Guantanamo Bay may not be as cut and dry as some may like.
Only this week, as the U.S. approaches the 20th anniversary of Sept. 11, pre-trial hearings for the five men accused of plotting and conspiring in the 9/11 hijackings are finally beginning. And though the U.S. has withdrawn military forces from Afghanistan, the court battles that play out in the coming months—including those challenging detention—could cast several detainees as forever prisoners, awaiting justice with no clear end in sight, just as emblematic of forever war as ever.
Kevin Powers, who formerly worked as a legal adviser at the Department of Defense on some Guantanamo Bay cases, told The Daily Beast that there’s an argument to be made that hostilities are still ongoing because terrorists still exist. Some may also argue that prisoners’ ongoing detention hinges on the 2001 Authorization for Use of Military Force (AUMF).
To Powers’ point, ISIS killed 13 U.S. service members in a suicide bombing outside the Kabul airport in recent days. And of course, the Biden administration has said it retains the ability to hunt down terrorists in-country.
“Arguably that’s still ongoing, because you had an ISIS attack a week and a half ago. But can you actually hold anyone forever?” Powers, a professor and director of the Cybersecurity Policy and Governance Program at Boston College, said. “They’re considered unlawful combatants. You can hold them as long as there’s a war in place.”
The Department of Justice has recently argued that the metastasizing war on terror, as well as America’s continued focus on fighting al Qaeda, means the war on terrorism isn’t over.
“We have been and remain at war with al Qaeda,” DOJ attorney Stephen M. Elliott said in May at a hearing, adding, the war on terrorism continues as al Qaeda is “morphing and evolving.”
“But if the war ends, then you really can’t hold them,” Powers said of detainees at Guantanamo Bay.
Whether it’s about the war being over in Afghanistan, or the fight against al Qaeda ending, Denbeaux says he and his colleagues, Charles Church and Max Sirianni, still have a case to be made—especially since Biden admitted both that the war was over and that al Qaeda was “gone” from Afghanistan in recent addresses to the nation.
“That’s one piece of evidence that I rely on for saying that they have to release [Zubaydah],” Denbeaux told The Daily Beast. “There is no doubt that the executive branch of the U.S. government, which includes the State Department, the Defense Department, and most importantly the president, has declared the war over.”
Insurgents that align themselves with al Qaeda, of course, don’t just exist in Afghanistan, and are still planning attacks against the U.S., according to U.S. intelligence assessments.
Still, these questions might get entangled in arguments that ongoing detentions will hinge on the status of the AUMF. The AUMF allowed the Bush administration—and subsequent administrations—to use “all necessary and appropriate force” to respond to the 9/11 attacks. That has been used as grounds for detaining suspected terrorists at Guantanamo Bay.
While there has been some movement on repealing some AUMFs in recent months—the House of Representatives voted earlier this year to repeal the 2002 AUMF for the war in Iraq—addressing the 2001 AUMF for the war in Afghanistan could be a bit more turbulent. U.S. government officials have bristled at suggestions that the status quo ought to change in recent years, noting that repeals could affect hostilities in Afghanistan, Yemen, Somalia, Libya, Iraq, and Syria, and blunt U.S. counterterrorism work.
The status of the 2001 AUMF remains in flux on Capitol Hill. Sen. Tim Kaine, D-Va., has previously introduced legislation to address the 2001 AUMF and provide a narrower authorization, and he is currently working on similar legislation this Congress.
Already, Zubaydah’s case has been complicated by debates about whether it is hostilities with al Qaeda, hostilities in Afghanistan, or the AUMF that must crumble in order for arguments about detention to play out in court. In July, the government’s attorneys said that the detention was still lawful because hostilities—authorized by the AUMF—against al Qaeda and the Taliban remained ongoing, according to court documents obtained by The Daily Beast.
By Biden’s count, at least, that fight is still live.
“We will maintain the fight against terrorism in Afghanistan and other countries,” Biden said in remarks last week.
And even though Biden has said he wants to close the Guantanamo Bay chapter of the war in Afghanistan, his own administration is getting its wires crossed on the best way to do that—mimicking patterns previous administrations adopted with respect to the detention center, saying they want to close it, but then making arguments in courtrooms that contradict progress toward that goal.
In recent filings, the Department of Justice opted to not weigh in on whether inmates at Guantanamo Bay can be detained without due process.
“For years one pattern with respect to different administrations’ approach to Guantanamo is to say they want to close it while arguing in court for maximal authority that ends up preventing an end to the abusive policies and detention that define Guantanamo,” Shamsi told The Daily Beast. “The government in our view did not go far enough in doing what it should have done—which is simply acknowledge that the due process clause applies.”
Approaching a modicum of responsibility and getting one step closer to closing Guantanamo Bay would require acknowledging the inmates’ due process rights.
“Recognition of the due process clause applying at Guantanamo is a means of providing a judicial process to resolve the issues there, which would take us a significant step forward towards closing Guantanamo responsibly in a way that considers the harm done to [the] men… for nearly 20 years,” Shamsi told The Daily Beast.
The filing in Zubaydah’s case, which attorneys are expected to file in the coming days, won’t be the first time Guantanamo Bay inmates’ detention has been challenged in court. But even with the tussles about authority for detention, the arc of the story might be on the cusp of change, according to Denbeaux, who says he is hopeful the judge will have little wiggle room to deny his team’s reasoning.
When he and his team filed a motion earlier this year, noting the Biden administration had plans to end the war and arguing that should kick off a process to end Zubaydah’s detention, the U.S. government suggested the argument be stalled “until the withdrawal is actually completed” from Afghanistan.
“No judge can say—in the face of the president’s statements and the announcement of the Department of Defense that our troops are out—that the war is not over,” Denbeaux said.
And if anyone wants to argue the cessation of hostilities must include an assessment of al Qaeda’s standing on the world stage, for Zubaydah’s case, Denbeaux argued that may be irrelevant: Although the U.S. lauded Zubaydah as a third- or fourth-in-command to Osama bin Laden in the early days of his detention, CIA intelligence assessments did not support that and actually determined he “was not a member of al Qaeda,” according to the Senate torture report.
”The CIA has admitted he was never al Qaeda,” Denbeaux said. “This is a significant aspect of it… this takes away whatever argument [for detention] they have [with] al Qaeda.”