Glazier: Withdrawal From Afghanistan Marks Guantanamo's Endpoint

10/11/2021

"For two decades following the 9/11 attacks, U.S. forces engaged in combat in Afghanistan and used implied congressional authorization of the “fundamental incidents” of war to conduct detention and military trials at Guantánamo Bay. Conflict in Afghanistan has ended, but detention and military commissions proceedings continue absent political will to end them. But that is no longer an option – as the Supreme Court held in Hamdi v. Rumsfeld, detention authority ends at the close of “active hostilities.” And as it held in Hamdan two years later, military commissions lack normal constitutional authority, depending on the availability of congressional and executive wartime powers for their existence. These trials, too, cannot legitimately continue post-conflict.

While pundits continue to propose winding down Guantánamo by seeking detainee transfers with “security assurances,” the law of war mandates prompt repatriation. There is no “bad dude” exception based on general threat perceptions – only an actual criminal sentence or pending charges justify delay. Both the law of war and the Constitution require that the U.S. must now either charge detainees in federal courts, extradite them to another country for prosecution, or promptly repatriate them. The Article provides recommended dispositions for the thirty-nine detainees remaining at Guantánamo at the time of the U.S. withdrawal from Afghanistan consistent with residual law of war mandates. It concludes by arguing that this outcome actually serves larger overall U.S. national interests – Guantánamo’s fiscal, legal, moral, and political costs have long outweighed any benefits."

Read the full article here.

Brian L. Cox link

10/11/2021 11:50:33 pm

This Article presents a well reasoned and thoroughly researched perspective on the potential effect on detention authority of the US withdrawal from Afghanistan. Hat tip to Prof. David Glazier, as the Article provides a commendable starting point for anyone involved in the study or practice of determining the next steps for detention activities at Guantanamo Bay. This is a topic I address in my ongoing dissertation work, in which I seek to clarify the relationship between human rights law and the law of armed conflict. While a fairly brief comment on this platform is of course not an adequate forum in which to offer comprehensive alternative perspectives on a full-length journal Article, the aspect of the legal analysis in Part II, Sec. D (pg. 35 of the manuscript) forms the foundations for the author's conclusions regarding the way ahead for Guantanamo detention. As such, I will offer just a few competing perspectives here in relation to this aspect of the international and domestic legal analysis.

First, I completely agree with Prof. Glazier that none of the justices writing for the Hamdi SCOTUS opinion "took a very sophisticated approach to the law of war" in the context of detention and cessation of hostilities. The standards established in GCIII regarding cessation of hostilities and repatriation of POWs do not apply to NIAC detention by virtue of Common Article 2 of the GCs. There is other relevant SCOTUS jurisprudence to consider on this topic, but going forward the "active hostilities" analysis from Hamdi will need to be completely reformulated by judges/justices who address Guantanamo detention - extending IAC cessation of hostilities to the NIAC context by analogy in Hamdi was fundamentally flawed.

Regarding Prof. Glazier's international law analysis, the point of departure for my competing perspective is the author's reliance on the ICTY Tadic factors to support the conclusion that the United States can't be engaged in ongoing hostilities against al Qaeda and related non-state armed groups. He is correct to observe earlier in the Article that there is debate regarding whether the Tadic factors reflect binding customary law, but from the US perspective (and that of a number of states), these factors are *not* binding. Prof. Glazier's "second distinct barrier to considering the United States to be in a non-international conflict against al Qaeda" is essentially an application of the Tadic factors. This reliance on Tadic is a considerable limitation to the remainder of the international law analysis and the subsequent conclusion that detention is now no longer permissible pursuant to international law. (I don't address the first distinct factor extensively in this comment because I don't find relying on the language in CA3 or APII regarding the scope of application of the 1949 GCs or the 1977 AP to be compelling in the endeavor to ascertain whether a NIAC can be ongoing now.)

From a domestic law perspective, Prof. Glazier is certainly correct to center the analysis on the AUMF, but relying on the AUMF as the primary domestic legal framework for continued detention is problematic. Even assuming, arguendo, that "residual law of war authority under the AUMF, including preventive detention, has ended with the end of the conflict in Afghanistan," the AUMF is only one aspect of presidential authority here. To borrow Justice Jackson's tripartite description from Youngstown Sheet & Tube, POTUS functions at the height of executive authority when taking action that is consistent with legislation adopted by Congress. Even though some administrations have cited the AUMF to justify the extraterritorial use of force as a matter of political expediency, the more prudent approach (which has been Biden's preference) is to rely on Article II to justify the use of force. Here, executive authority is either in the zone of twilight or at its lowest ebb, depending on any relevant legislative expressions from Congress. Article I authority to declare war is obviously not relevant in the current context. As such, acting in accordance with the AUMF places executive authority "at its maximum" - but the effective (arguable) expiration of the AUMF by virtue of the Afghanistan withdrawal or even the eventual repeal and/or replacement of the existing AUMF is not constitutionally outcome determinative in relation to detention at Guantanamo Bay. The conclusion to the contrary is the central limitation for Prof. Glazier's domestic law analysis.

Thank you kindly to the CAAFlog team for posting a link to the Article, and Bravo Zulu to Prof. Glazier on a solid Article. As my own work on the topic progresses, the points addressed in this comment represent the primary aspects of the analysis at which my own perspectives diverge from those of Prof. Glazier.

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Glazier: Withdrawal From Afghanistan Marks Guantanamo's Endpoint

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