JURIST Guest Columnist J. Wells Dixon, Senior Staff Attorney for the Center for Constitutional Rights, says that the continued detentions at Guantánamo are arbitrary and unduly perpetual…

In his recent State of the Union address, President Barack Obama declared that the US would complete its military mission in Afghanistan by the end of this year and “America’s longest war will finally be over.” This echoes his remarks of nearly a year earlier when he cautioned that “[u]nless we discipline our thinking, our definitions, our actions, we may be drawn into more wars we do not need to fight … [T]his war, like all wars, must end.”

Obama also said that as the conflict comes to a close, indefinite detention under the laws of war must be brought to an end at Guantanamo Bay, which “has become a symbol around the world for an America that flouts the rule of law.”

Despite his repeated promise to close Guantanamo, the president has not made meaningful progress toward shuttering the prison in the last three years. Among the 155 men who are still detained, half have been approved for transfer unanimously by all relevant military, law enforcement and intelligence agencies but are not being repatriated or resettled anywhere. In the last year, only eleven men were transferred, including two who were forcibly returned to Algeria despite persecution fears and three who had successfully challenged the legality of their detention years earlier. Military commissions also continue despite the lack of any measurable progress, and Periodic Review Boards are slowly getting underway for those men not approved for transfer or charged with war crimes, albeit so far without tangible results.

It should therefore come as no surprise that the remaining detainees are not sanguine that the withdrawal of US combat troops from Afghanistan will mark an end to their detention.

Last month, Kuwaiti detainee Fawzi al Odah filed a legal brief in the US District Court for the District of Columbia requesting a declaration that he will be released at the end of combat operations in Afghanistan, which, again, Obama has said will happen by the end of this year. He seeks a ruling that his detention may not continue after that time on the basis of a continuing world-wide “war on terror” against al Qaeda and associated forces. Al Odah, who does not currently appear to be cleared for transfer, notably does not ask the court to declare the war over or to dictate the precise policies or procedures to effectuate his release. Instead, he simply wants to ensure that he will not continue to be held beyond the end of active hostilities, which would exceed what is authorized by the laws of war.

Alternatively, citing Hamdi v. Rumsfeld, he seeks an order of release on the ground that the practical circumstances of the current conflict have become so unlike those of the conflicts that have informed the development of the laws of war that the traditional law-of-war detention standard—i.e., until the end of hostilities in order to prevent return to the battlefield—has unraveled. He specifically contends that his detention has continued for so long and under such conditions that it is no longer preventive but rather punitive and disproportionate, thus violating due process.

The government opposes al Odah’s argument on the ground that it is not ripe for decision because hostilities continue in Afghanistan and al Odah can only speculate that they will end this year as the president has promised (or that he will continue to be detained after they do end). The government may succeed on that point in the short term before a district court that has plainly been cowed by the US Court of Appeals for the District of Columbia Circuit (which has never ruled in favor of a detainee on the merits of any habeas corpus case). However, as we near the end of the year and the withdrawal of US combat troops from Afghanistan, the argument will continue to gather strength. The courts may well be required to intervene if, as the government hints in its motion to dismiss al Odah’s petition, it ultimately takes the position that the withdrawal of combat troops from Afghanistan is not coterminous with the end of hostilities and that a world-wide war with al Qaeda and its affiliates continues and justifies al Odah’s ongoing detention even after the US has left Afghanistan.

The unraveling of traditional law-of-war detention authority in these circumstances is evident in several respects. First, the ongoing fight with al Qaeda is now the longest military conflict in US history, bar none. Second, as Obama noted in his May 2013 speech at the National Defense University, Osama bin Laden and al Qaeda’s core leadership are dead, imprisoned or detained. Finally, as other commentators have explained at length, any fighting that may continue globally after the US leaves Afghanistan will involve al Qaeda-inspired “franchise” groups that likely did not exist at the time that al Odah and other detainees were brought to Guantanamo more than twelve years ago. Again, however, as the president has acknowledged, the problem is one of definition: “[A]s long as there are bands of violent Islamic radicals anywhere in the world who find it attractive to call themselves al Qaeda, a formal state of war may exist between al Qaeda and America. The Hundred Years War could seem a brief skirmish in comparison.”

If the war with al Qaeda is to last for the foreseeable future, it cannot be that the ongoing, indefinite detention of a Guantanamo detainee such as al Odah—potentially for life—has any precedent under the traditional laws of war. However, that will be for the courts to decide, as they surely will if these men are not released by the end of 2014. Obama would be wise to heed his own caution about the perils of perpetual war and release al Odah without delay.

Although a court may be unlikely to declare an end to hostilities, which the government claims the US Supreme Court has held is an unreviewable political decision, it may conclude that al Odah is no longer detainable even though hostilities continue because the nature of the conflict is unending and unprecedented under the traditional law of war. Indeed, there is a strong argument (PDF) that detainees who are approved for transfer from Guantanamo are currently no longer detainable under the laws of war even as the conflict continues on the theory that their clearance for release manifests a discretionary determination by the government that they do not present a risk of return to the battlefield, and thus that their indefinite detention no longer serves any ostensible purpose and is arbitrary and perpetual. As the court in Hamdi proclaimed, “a state of war is not a blank check for the president.”

J. Wells Dixon is a Senior Staff Attorney for the Center for Constitutional Rights. He also works on the Guantanamo Global Justice Initiative, and he previously worked at Kramer Levin Naftalis & Frankel LLP, where he specialized in white collar criminal defense and securities litigation.

Suggested citation: J. Wells Dixon, The Status of Guantanamo Detainees in a War That May Never End, JURIST – Hotline, Mar. 6, 2012, http://jurist.org/hotline/2014/03/wells-dixon-guantanamo-detainees.php.