I hope all my readers enjoyed the holidays and are enjoying the new year. Much has happened in my absence. For one, I came across two discussions/debates that are related in a way that people rarely acknowledge. The first one, from Lawfare, is about the legality of long-term detention of enemy combatants. Benjamin Wittes, in a late-December post, criticized a couple of New York Times op-eds for misreading the legality of long-term detention at Guantanamo. Basically, as Wittes notes, long-term detention without trial is legally justified by the AUMF. There’s no legal ambiguity about it despite a New York Times op-ed that called it “certainly illegal.” The Supreme Court has upheld this, in the Hamdi case, for example:
Hamdi contends that the AUMF does not authorize indefinite or perpetual detention. Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized. Further, we understand Congress’ grant of authority for the use of “necessary and appropriate force” to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles. If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel. But that is not the situation we face as of this date. Active combat operations against Taliban fighters apparently are ongoing in Afghanistan… The United States may detain, for the duration of these hostilities, individuals legitimately determined to be Taliban combatants who “engaged in an armed conflict against the United States.” If the record establishes that United States troops are still involved in active combat in Afghanistan, those detentions are part of the exercise of “necessary and appropriate force,” and therefore are authorized by the AUMF.
The second discussion, from the FPA Afghanistan blog, is about the political ramifications of NATO’s announcement of an anticipated 2014 withdrawal from Afghanistan. Patrick Frost, rightly, in my view, criticized Peter Feaver’s analysis of the situation. While Feaver thinks the left will turn on Obama when there’s no significant drawdown in 2011, Frost, and I, think otherwise. Where Frost and I disagree, it seems, is on whether the U.S. will actually withdraw in 2014. As I noted in the comments section, according to U.S. and NATO officials, the 2014 plan is “conditions-based,” “an aspirational goal,” and “[t]here may very well be the need for forces to remain in-country” past 2014. And despite Joe Biden’s comment in December that the U.S. will withdraw in 2014 “come hell or high water,” he announced last week that the U.S. will stay beyond 2014 at the request of the Afghan government.
So how are these two discussions related? Well, as the Hamdi plurality notes, if the U.S. is no longer involved in combat operations in Afghanistan, the legal justification for long-term detention “may unravel.” Thus, this is actually a good argument against holding people in long-term detention without trial, as advocated by Lawfare’s Jack Goldsmith. Trying detainees, either by military tribunals or Article III courts, offers the opportunity to legally detain them past the point when combat operations in Afghanistan cease. Otherwise, the two elements, detention and withdrawal, remain linked.
