The fate of the remaining 40 terrorists at Guantanamo Bay — and the future of the detention center — is in question when U.S. troops are withdrawn from Afghanistan in less than five months, experts say.
At least two prisoners who’ve already challenged their detention are reportedly updating their complaints to include President Joe Biden’s announced Sept. 11 troop withdrawal as a reason for their release, The Hill reported Sunday.
Congress’ war authorization has has been used as the legal justification for indefinite detention at Guantanamo, but it’s not clear that would continue after troops’ withdrawal, The Hill noted.
“I think the short answer is that we just don’t know,” Steve Vladeck, a University of Texas law professor, told the news outlet about the possible effect troop withdrawal will have on Guantanamo.
“It clearly provides the remaining Guantanamo detainees with a new ground on which to challenge the legal basis for their continuing military detention, and one that is not necessarily foreclosed by existing precedent,” he told the news outlet.
“But it’s not at all clear that courts will be sympathetic to those arguments, not just because they haven’t been to date, but because the Executive Branch is likely to argue that the conflict with al Qaida isn’t ending just because we’re leaving Afghanistan.”
Of the 40 remaining men at the facility, six have been cleared for transfer and seven have been charged in the military commission system, including the five 9/11 suspects, The Hill reported.
The Biden administration is reviewing the facility with the intention of closing it — and 24 Senate Democrats are pushing that, writing Biden last week that he could close the facility with “sufficient political will and swift action,” The Hill reported.
“After years of indefinite detention without charge or trial; a history of torture and cruel, inhuman, and degrading treatment; and multiple attempts at a thoroughly failed and discredited military commission process, it is past time to close Guantanamo’s detention facility and end indefinite detention,” stated the letter spearheaded by Sens. Dick Durbin of Illinois and Patrick Leahy of Vermont.
Alli McCracken Jarrar of Amnesty International told The Hill the detention facility should be ended along with the “forever war,” saying it would be a signal by Biden “that he's committed to his human rights obligations.”
According to the New York Times, lawyers for two Guantanamo detainees filed motions seeking their clients’ release citing the withdrawal — Khalid Qassim, a 44-year-old a Yemeni man who has been held without trial at Guantanamo for nearly 19 years, and Asadullah Haroon Gul, captured by Afghan forces in 2007.
“The law is clear: Asadullah gets to go home now, regardless of whether, as the government incorrectly contends, he was part of or substantially supported Al Qaida,” the lawyers wrote.
Yet the top U.S. commander in the Middle East, Gen. Frank McKenzie assured House lawmakers last week would maintain the ability to conduct counterterrorism strikes in Afghanistan even if that is harder to do with troops stationed elsewhere, The Hill reported.
And the White House has said, Biden is open to a rewritten authorization for the use of military force; the existing 2001 AUMF is expected to stay on the books, The Hill reported.
“The real reform, as has always been clear, would have to come from Congress,” Vladeck told The Hill.
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