International Law: LOAC: Detention

Al-Warafi's "End of War" Reply Brief

By Wells Bennett
Friday, May 22, 2015, 2:00 PM

The Guantanamo detainee, as readers likely know, argued in a February motion that the end of the United States' war in Afghanistan, as recognized by President Obama, requires his release from Guantanamo. On Wednesday, Al-Warafi filed his reply brief on that issue. It opens as follows:

The Government’s argument for the continued detention of Al Warafi, a man found to have served briefly as a Taliban medic in 2001, is that “active hostilities” are continuing against the Taliban in Afghanistan, and that the President and the Congress are “in agreement” that this is the case. This argument is directly and fatally at odds with authoritative statements by the President that require the release of Al Warafi. The Government does not dispute that the President has the power to say when a war is over for purposes of determining when war-time detainees must be released. It is also indisputable that the President has reiterated, as recently as January 28, 2015, that “our combat mission in Afghanistan is over, and America’s longest war has come to a responsible and honorable end.” Exhibit J at 1. The Congress has not disagreed with the President’s statements. The President’s statements are not ambiguous, qualified, or conditional, and their plain English meaning is that United States’ military forces are no longer engaged in active hostilities with the Taliban. The President’s statements have not been amended or withdrawn by the only official with the power to do so, the President himself. They are thus controlling here. The President acknowledged when he made his end-of-war statements that “Afghanistan remains a dangerous place,” and that the relatively few United States personnel still in that country “face risks” as they pursue their missions of “train[ing], advis[ing] and assist[ing] Afghan forces” and of conducting “counterterrorism operations against the remnants of al Qaeda.” See Exhibit I. These missions, however, are not said by the President to be directed at the Taliban. Al Warafi has been held as a Taliban war prisoner. That war is over. Accordingly, his continued detention is unlawful, and the Court should grant his habeas petition.