Detention: Operations in Afghanistan

The Uncertain Future of Military Detention Authority as "Combat Operations" in Afghanistan End

By Robert Chesney
Tuesday, May 27, 2014, 4:23 PM

Scooping his own speech tomorrow at West Point, President Obama today announced his decision on future US force levels in Afghanistan.  Assuming that the winner of the Afghan presidential election will indeed sign the new Bilateral Security Agreement (which both leading candidates have pledged to do), the US will:

- reduce its presence to 9800 troops for 2015, with most engaged in training missions but with a separate group of SOF remaining to engage in "counterterrorism" operations;

- reduce that number by a further half for 2016, while also consolidating the remaining troop presence to locations at Bagram and Kabul; and

- remove all remaining troops by 2017 (except for a presence solely to defend the embassy).

Two comments:

First, the clock is really ticking with respect to the rump, lingering population of detainees (all non-Afghan, I believe) who remain in US military custody there.  Perhaps the ongoing SOF presence will include this function, thus kicking the can down the road two more years.  I'm guessing not, however.

Second, note that the administration itself depicts this as the end of US involvement in combat operations in Afghanistan, this year, notwithstanding the plan to keep SOF in theater for "counterterrorism" operations for two more years (see, e.g., Secretary of Defense Hagel's press release, stating that "our combat mission ends there later this year"). This is a description that certainly will be seized upon by those challenging the government's continuing assertion of detention authority as to GTMO detainees.  Even if the AUMF and NDAA FY'12 remain on the books untouched by President or Congress, then, it's quite possiblethat change could still occur thanks to judicial intervention (particularly if and when a case presenting this fresh question percolates up to SCOTUS).  Might uncertainty over how judges eventually will respond to this situation (in which the US engages only in episodic "counterterrorism operations" but no sustained"combat operations") help create the political space for fresh legislative thinking on the future of GTMO?