Most immediately, officials believe the war’s declared end could force a reckoning over the detention of more than a dozen Afghan Taliban members captured on the battlefield, allowing them to lodge new appeals to the federal courts.
“In the words of the Supreme Court, the authority to detain — if you’re detaining based on someone being a belligerent — can unravel as hot wars end. And I think that’s a real question,” Brig. Gen. Mark Martins, chief prosecutor for military commissions at Guantanamo, said in a recent interview.
Detainees at Guantanamo have been held, some of them for more than 12 years and most without charge, since Congress authorized the use of military force against those who “planned, authorized, committed or aided” the Sept. 11, 2001, attacks and might launch new attacks.
Ideally, Obama would like to do away with the Authorization for the Use of Military Force, a law passed within days of the 9/11 attacks, and replace it with more targeted versions to allow action against new al-Qaeda related groups in the Middle East and Africa and other threats as they arise. His goal, the president said in a May speech, is to ”refine, and ultimately repeal” the existing authority.
Repeal of the AUMF could allow other detainees imprisoned under its terms to refile habeas corpus petitions that the government had successfully quashed.
“If that were to go away, you really don’t have that legal hook for continued detention,” a senior administration official said of the AUMF. “I think you would have some very interesting constitutional questions.”
While the end of the war may accelerate the transfer of prisoners, the administration would still need a place to hold those being tried in military commissions, including the alleged 9/11 plotters, and potentially some of the four dozen men deemed too dangerous to release but who are ineligible for trial because evidence against them is inadmissable. Congress has prohibited their transfer to U.S. prisons.
No new detainees have arrived at Guantanamo since 2008, when the George W. Bush administration announced the transfer of the last of the 16 “high-value” prisoners from secret CIA and other sites overseas.
Under both the Bush and Obama administrations, the AUMF has provided the legal justification under U.S. law for military action in Afghanistan and for CIA drone attacks and other actions in Pakistan. With no legislative or legal challenge, Obama has also adopted a more expanded interpretation of the law to use force against al-Qaeda “associates,” including groups that did not exist when it was first enacted.