The White House wants to wind down the war in Afghanistan. And it’s the heart of the conflict that Congress OK’d in the Sept. 18, 2001, Authorization for the Use of Military Force, from which the Pentagon designed its indefinite detention regime.
But, “If there are peace talks and if the war is considered over, what will the courts say about continued detention?” says Andrew Prasow, a former Guantanamo defender and now senior counterterror counsel for Human Rights Watch.
Ten Guantanamo captives are Afghan, and some of the 171 prisoners probably never even set foot on Afghan soil after 9/11. But the basis for captivity in Cuba stems from the conflict in Afghanistan.
“Will a court say the conflict has ended?” Prasow asks. “After Osama bin Laden is killed, after peace talks with the Taliban, it may no longer justify indefinite detention.”
What these folks are suggesting is that indefinite detention, as has been approved via the AUMF and NDAA, is only valid as long as we are at war. But with the death of bin Laden and our exit from Afghanistan coupled with a peace agreement with the Taliban, that war will be over. At that point, we could expect the courts to rule that continued detention was no longer lawful...regardless of what Congress says.
This is precisely why our exit from Afghanistan and the administration's current negotiations with the Taliban are even more important than many people have realized. I expect that folks like Sen. Lindsay Graham are very aware of this and that if/when we see positive developments on those fronts, they will raise holy hell about it. We need to be aware of what's at stake and prepared to fight back.