Obama’s Lawyers: Let’s Extend the 9/11 Wars Forever
When the president says a war is done, you’d think his attorneys would fall in line. Think again.
President Obama has said the United States’ combat mission in Afghanistan is over, and that the 13-year-long war there has come to an end. Top lawyers in his administration have a different message: Not so fast.
Obama stated unconditionally in his State of the Union address in January that “our combat mission in Afghanistan is over.”
But in a recent speech to the annual meeting of the American Society of International Law, an often-used venue for Obama administration officials to make extensive remarks on national security policy, the Defense Department’s general counsel seemed to reinterpret the president’s earlier statements. The lawyer appeared to walk back his more emphatic pronouncements about the end of America’s longest war.
“Although our presence in [Afghanistan] has been reduced and our mission there is more limited, the fact is that active hostilities continue,” Stephen Preston, the Pentagon’s top lawyer, said in a speech April 10. And, he added, “There is no doubt that we remain in a state of armed conflict against the Taliban, al Qaeda, and associated forces as a matter of international law.”
Preston’s observations were supported by facts: Thousands of U.S. troops remain in the country. They are still dying there. And President Obama has decided to slow their withdrawal so the U.S. can continue to conduct counterterrorism operations.
But Preston’s comments were more complex, and conditional, than Obama’s earlier pronouncements that America’s war in Afghanistan is finished. And that puts the administration in something of a bind.Obama has called for the “repeal” of the 2001 authorization for use of military force (AUMF) that sent Americans to war against al Qaeda and associated groups. An ending of the post-9/11 war, in other words.
Preston was, in effect, acknowledging “that the Forever War is not ending anytime soon,” Jack Goldsmith, the former head of the Justice Department’s Office of Legal Counsel, wrote on the blog Lawfare on Friday.
Obama has submitted a new AUMF to Congress focused on ISIS, but momentum to pass that measure has stalled on Capitol Hill. And now, Preston said, the president wants “to tailor the authorities granted by the [original] AUMF to better fit the current fight and the strategy going forward,” signaling that the administration may no longer believe that Congress can pass a new authorization.
Noting that the United States is fighting at least eight distinct terrorist and militant groups under the AUMF, Preston suggested that there may never be an end to the war with America’s terrorist and militant enemies, at least in the traditional sense. “Indeed, in an armed conflict between a state and a terrorist organization like al Qaeda or [ISIS], it is highly unlikely that there will ever be an agreement to end the conflict. Unlike at the close of the World Wars, there will not be any instruments of surrender or peace treaties,” he said.
But there can be closure. And, in the recent past, Obama seemed to offer it. Speaking to U.S. troops at a base in New Jersey last December, the president said, “This month, after more than 13 years, our combat mission in Afghanistan will be over. This month, America’s war in Afghanistan will come to a responsible end.”
But Preston seemed to argue that this isn’t so, raising questions about what legal significance the president’s own statements have. U.S. military operations in Afghanistan “remain substantial,” he said. “Taliban members continue to actively and directly threaten U.S. and coalition forces in Afghanistan, provide direct support to al-Qa’ida,” Preston said, “and pose a strategic threat to the Afghan National Security Forces,” which U.S. troops are now training. “In short, the enemy has not relented, and significant armed violence continues.”
Notably, Preston didn’t refer to Obama’s speeches in New Jersey or the State of the Union address, but to a third, more open-ended statement the president issued at the end of December, following the formal handoff for security in Afgahnistan from a U.S.-led mission to Afghan forces.
“Our combat mission in Afghanistan is ending, and the longest war in American history is coming to a responsible conclusion,” Obama said at the time.
Preston described this as part of a “transition” to a new U.S. role in Afghanistan: training Afghan forces, conducting counterterrorism operations, and protecting U.S. troops.
A Pentagon spokesman told The Daily Beast that there was no conflict between what the commander-in-chief and the Defense Department's top lawyer said. “The statements are not at odds,” Colonel Steve Warren said in an email. “Preston was showing the nuance between ‘state of armed conflict’ and ‘combat mission...America's war,’” the words Obama used in earlier speeches.
That the administration felt the need to add such a nuance was in itself remarkable. A spokesperson for the National Security Council referred questions about Preston’s speech to the Pentagon. But it’s standard practice for the Defense Department to share drafts of speeches and talking points with the White House in advance. So it’s unlikely Preston was saying anything the White House hadn’t already approved.
And that nuance has significant consequences, both for the administration’s legal position on when hostilities in Afghanistan have actually ended, and for Obama’s long-standing promises to bring an end to the war.
In the near term, Justice Department lawyers are likely being put in the awkward position of having to argue against the president’s own statements. On Friday, U.S. attorneys filed a motion opposing an argument by an accused Taliban member held at Guantanamo Bay, Mukhtar al Warafi, that he should be released because Obama has said the war in Afghanistan is over, erasing any legal grounds to continue holding him.
The government's response is classified. But legal experts told The Daily Beast that to counter Warafi’s claims, U.S. lawyers will almost certainly have to argue that despite what Obama has said, there is still a state of armed conflict against the Taliban, meaning the U.S. may continue to hold Warafi.
For how long? While not commenting on Warafi’s case, Preston predicted that the conflict may outlast Obama’s time in office. “Active hostilities will continue in Afghanistan (and elsewhere) at least through 2015 and perhaps beyond,” he said.
Warafi may have kicked off a trend. Lawyers working with other Guantanamo detainees told The Daily Beast that another man held on the island prison, Faiz Mohammed Ahmed Al Kandari, is also petitioning the government to release him, using the same argument as Warafi. The legal briefs in his case haven’t been made public and the government has yet to file its response.