Gitmo Detainee Ordered Released

As the scope of the conflict in Afghanistan involving the U.S. narrows, so does the U.S. legal authority to detain people as enemy combatants.  This reality recently resulted in a court order to release someone who has beeb detained at the Guantanamo Bay military base as an enemy combatant for the last fourteen years. Other releases could follow.

An "enemy combatant" may be detained indefinitely merely because he has part of the other side's military in a military conflict with the U.S., in this case one authorized by the Authorization To Use Military Force (AUMF) adopted by Congress shortly after the 9-11 attacks on U.S. targets in 2001. But, when you cease to be in a military conflict with the military force the detainee belongs to, that authority ends. As the Lawfare blog explains at the link above:

On Oct. 19, Judge Amit Mehta of the U.S. District Court for the District of Columbia did something we have not seen in many a year: He granted a Guantanamo detainee’s petition for a writ of habeas corpus, ordering the man’s release.

The man in question is Asadullah Haroon Gul (aka Haroon al-Afghani), an Afghan citizen who was captured alongside six other men in an operation by Afghan government forces in early 2007. All the men, it appears, were members of the armed group known as Hezb-e-Islami Gulbuddin (HIG) commanded by former Afghan Prime Minister Gulbuddin Hekmatyar. Though not formally part of the Taliban, Hekmatyar’s political movement and its armed expression, HIG, were aligned theologically and politically with the Taliban. And after the fall of the Taliban, HIG became one of the armed groups fighting against the new Afghan government, U.S. forces and other allied forces. In short, HIG for many years was a paradigm example of an “associated force” engaged in hostilities against the United States in connection with the larger conflict with al-Qaeda and the Taliban. Indeed, in 2011, a U.S. Court of Appeals for the D.C. Circuit opinion authored by now-Attorney General Merrick Garland expressly affirmed as much in Khan v. Obama.

But here’s the thing about military detention authority: The scope of that authority will grow or shrink in accordance with the scope of the underlying armed conflict on which the claim of military detention authority is based. And thus it mattered a great deal when, in fall 2016, the then-government of Afghanistan reached a peace agreement with HIG. Thus, even without the eventual U.S. decision to withdraw from Afghanistan and end the fight against the Taliban too, the legal foundation for military detention in cases predicated solely on membership in HIG appeared to be going or already gone by late 2016. . . .

In 2018, the Justice Department responded by abandoning its claim of authority to detain based on HIG membership alone. It argued that Gul still could be held, however, based on the distinct claim that Gul separately had been involved with al-Qaeda itself. (See this 2018 Lawfare post from Harry Graver for those details and relevant links.) Gul denies that argument on factual grounds, and for a time that was the central issue in the case. 

Then, with the recent full withdrawal of the United States from Afghanistan, Gul appears to have expanded his argument to include a much broader claim about the expiration of the legal grounds for detention. That claim, if accepted by the court, could have sweeping implications for other Guantanamo detainees.