Bobby drew attention to yesterday's Washington Post article about the Afghan Government's release of hundreds of detainees the U.S. military had transferred to Afghan control at the detention facility at Bagram. Bobby rightly commented that the Afghans' reluctance to hold detainees under the laws of war is not new; despite being in the middle of an armed conflict, they have resisted law-of-war detention for many years.
Latest in Detention: Operations in Afghanistan
The unwinding of US detention operations in Afghanistan continues. The latest development concerns the population of some 880 Afghan detainees whom the United States has transferred to Afghan control as part of the drawdown process (the United States continue to hold a smaller population of non-Afghan detainees, the long-term disposition plan for which is unclear to say the least).
When it comes to detention and drone strikes, both critics and supporters of the status quo assume that abandoning the armed-conflict model would have not just diplomatic and legal effects but also a significant legal effect. Critics bank on it, supporters fear it. But what if their common assumption is wrong? It's a question I address in a short piece this morning at Security States (a joint online project of Lawfare and The New Republic), titled "
Here’s a quick read-out from Tuesday’s oral argument in a trio of cases concerning detainees captured outside of Afghanistan, but eventually transferred to the custody of the U.S. military and held at a facility at Bagram airfield.
The question before a three-judge panel of the D.C. Circuit Tuesday morning: can a group of detainees held by the United States at Bagram airfield, in Afghanistan, challenge their detentions by petitioning for writs of habeas corpus? It is presented in three cases, Al Maqaleh, Amanatullah, and Hamidullah, all of which were dismissed by District Court judges in 2012 for lack of subject matter jurisdiction.
"Does it really matter, from a legal perspective, whether the U.S. government continues to maintain that it is in an armed conflict with al Qaeda? When it comes to the use of lethal force and military detention, not nearly so much as both supporters and critics of the status quo commonly assume."
An article in the Washington Post today draws attention, once more (see here, for example), to the lingering question of what will become of the lingering population of detainees (all non-Afghans) remaining in US custody in Afghanistan. Nothing new to report so far as I can tell, alas, other than the rather interesting fact that General Dunford has
OMB has issued a Statement of Administration Policy (SAP) pointing out White House objections to various elements in pending NDAA legislation (H.R. 1960, the HASC NDAA FY'14 bill), and threatening to veto the legislation if changes are not made. There are, of course, many different points of contention. I'll highlight two sections of the SAP that may particularly interest Lawfare readers:
Bobby’s post from Friday argued that “the current shadow war approach to counterterrorism doesn’t really require an armed-conflict predicate–or an AUMF, for that matter.” Bobby’s point is that most if not all of the USG’s current uses of force outside Afghanistan could in theory continue even if the armed conflict against al Qaeda ended. This is because, as Bobby says, the administration’s “imminent threat” constraint outside hot battlefields – which has allowed quite a lot of lethal force to be used in many nations – “is at
This post draws on material from my current book project, the concluding chapter of which considers the legal architecture of counterterrorism in a "postwar" setting...and advances the argument that we already have largely crossed into that world.