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Judge: 'Apparent' duty to release Guantánamo prisoners at Afghanistan War's end

A federal judge has passed up a Guantánamo detainee's demand for an order that he be released when the U.S. war in Afghanistan ends, but the jurist suggested that U.S. officials have an "apparent" legal duty to let such prisoners go when hostilities there conclude.

In a ruling issued Sunday, U.S. District Court Judge Colleen Kollar-Kotelly turned aside Kuwaiti detainee Fawzi al-Odah's plea, calling it an "abstract disagreement" at this point since thousands of U.S. troops remain in Afghanistan. However, her language indicated she was amenable to arguments that the U.S. government's authority to hold detainees concludes when the fighting in Afghanistan is over, or at least the U.S. role in such fighting is over.

"Petitioner’s anticipated injury is, at present, based entirely upon speculation that federal government officials will refuse to carry out their apparent legal responsibilities," Kollar-Kotelly wrote in a 21-page decision (posted here).

Kollar-Kotelly said she didn't need to and should not resolve the legal question in part because indications are that the Obama administration plans to shut down the Guantánamo facility and has invoked the wind-down of the Afghan war as part of the urgency for doing so.

"Petitioner does not credibly contend, nor is there any evidence in the record to suggest, that the President or any other United States government agent intends to detain designated enemy combatants unlawfully beyond the cessation of hostilities. Rather, various statements in the record, cited by Petitioner, support the conclusion that the President and other federal government officials do not intend to detain Petitioner once hostilities in Afghanistan cease," the judge wrote.

Citing al-Odah's court filings, Kollar-Kotelly quoted President Barack Obama saying, "[W]ith the Afghan war ending, this needs to be the year Congress lifts the remaining restrictions on detainee transfers and we close the prison at Guantanamo Bay," and, “In Iraq, we turned over thousands of prisoners as we ended the war.” However, she also quoted seemingly more ambiguous statements from Obama, such as, "To the greatest extent possible, we will transfer detainees who have been cleared to go to other countries."

The dispute about al-Odah's release could wind up being academic. A U.S. military review board cleared al-Odah for transfer to Kuwait, his attorney announced last month.

The Obama administration has been vague about the scope of its authority to detain prisoners at Guantánamo after the U.S. withdraws combat troops from Afghanistan.

When controversy erupted earlier this year over Obama's decision to swap five Taliban leaders for captured Army Sgt. Bowe Bergdahl, some administration officials suggested the Taliban prisoners were of diminishing negotiating value to the U.S. since they might be required to be released anyway as hostilities concluded.

Last month, Obama White House counterterrorism adviser Lisa Monaco also straddled on the issue, while acknowledging there's a valid argument to be made for release of the prisoners. "To the extent we’re no longer in a conflict with the Taliban, there may not be a basis to hold those individuals," she said.

In a key 2012 speech, Pentagon General Counsel Jeh Johnson (now secretary of Homeland Security) also said authority to detain prisoners was linked to the "cessation of active hostilities." But he also noted that some prisoners in World War II were held onto for a time after the war ended.

One question that remains is whether the end of combat in Afghanistan impacts or limits the U.S. government's ability to detain prisoners affiliated with Al Qaeda, so long as that group remains effectively at war with the U.S.

Al-Odah, the prisoner whose petition was ruled on Sunday, was captured on the Afghanistan-Pakistan border near Tora Bora in December 2001. Earlier court rulings found him to be part of Al Qaeda and Taliban forces.

Some legal experts believe the U.S. could retain authority to hold Al Qaeda prisoners, while losing the ability to detain those simply affiliated with the Taliban.