JURIST Guest Columnist David Frakt of the University of Pittsburgh School of Law says that the Obama administration should release those detainees held at Guantanamo Bay who have already been declared to not be a danger to the US…

O ne of the most vexing problems currently facing the administration of US President Barack Obama is its inability to release 85 detainees from Guantanamo Bay who were cleared for release by the Guantanamo Review Task Force (GRTF) more than three years ago. Many of these detainees are now engaged in a hunger strike, at least in part, to protest their continued, indefinite detention. Although cleared for release, politically motivated restrictions in the National Defense Authorization Act have made it virtually impossible for the administration to transfer these detainees out of Guantanamo absent a court order, such as a writ of habeas corpus from the US District Court for the District of Columbia. Unfortunately, the sole focus of the habeas review currently is on the legality of detention at the time of capture. If the US can establish that the detainee was lawfully detainable at that moment (and the standard of review created by the US Court of Appeals for the District of Columbia Circuit in Al-Adahi v. Obama makes this an easy burden for the government to meet) then the lawfulness of continued detention until the cessation of hostilities is conclusively presumed. Because the US loathes to admit that it has made a mistake and detained someone for many years without a legal basis, the US Department of Justice (DOJ) is in the awkward position of opposing habeas corpus petitions even when the GRTF has determined continued detention of the petitioner is unwarranted because he no longer poses a danger to the US. In fact, the DOJ has successfully blocked the release of eight detainees off the cleared list by opposing their habeas corpus petitions, including three cases where the detainee won the writ at the trial level and the Department of Justice won a reversal on appeal. One of those who won his petition only to have it reversed on appeal was Adnan Latif, whose resulting desperation drove him to commit suicide. In fact, no detainee has prevailed in a habeas corpus petition in three years.

I have a proposed solution to this problem.

I represented former detainee Mohammed Jawad (along with the ACLU) in his habeas corpus petition in 2009. After the district court judge ruled that most of the government’s evidence was inadmissible, the DOJ filed a notice indicating that they were no longer treating Mohammed as detainable under the Authorization for Use of Military Force (AUMF) and would no longer oppose his habeas corpus petition. The government did not admit that Mohammed had been unlawfully detained. One month later, including a 15-day waiting period after notice of the transfer was provided to Congress, Jawad was home in Afghanistan. This proves that when the Obama administration really wants to transfer a detainee, they are quite capable of doing so. There is nothing to stop the DOJ from filing similar notices for the cleared detainees indicating that the government no longer considers them detainable and does not oppose their petitions for habeas corpus. If any explanation is required, the DOJ can inform the court that the government has revised its view of the propriety of indefinite detention of non-dangerous detainees under the laws of war, and now considers it to be inconsistent with the law of war to hold detainees indefinitely when the justification for their original detention no longer exists.

Critics might suggest that this is simply a gimmick to circumvent the will of Congress to block the transfer of detainees from Guantanamo. In my view, this change of position would actually represent a correct application of the law of war. Although it has become conventional wisdom that the US has the power under the international law of armed conflict to detain enemy combatants at Guantanamo until the “cessation of hostilities,” the basis for this belief is very flimsy. It is certainly true that a nation state may hold prisoners of war until the cessation of hostilities in an international armed conflict. This is clearly spelled out in Geneva Convention III, on the Treatment of Prisoners of War. But the detainees at Guantanamo are not and have never been treated as prisoners of war and the Supreme Court has determined that we are in a non-international armed conflict. Nevertheless, the US, without any clear legal authority, has asserted that it has the identical power to detain enemy combatants as if they were prisoners of war (POWs). The justification for detaining POWs until the cessation of hostilities is obviously to prevent repatriated POWs from returning to the battlefield. The same justification has been advanced to explain why the US is entitled to hold detainees until the cessation of hostilities.

However, this argument ignores one crucial distinction between POWs and the detainees at Guantanamo: POWs are members of the uniformed armed forces of the opposing state, while Guantanamo detainees are not. A released POW repatriated to his home country during an ongoing armed conflict would not only have the legal right to return to the battlefield, but in most cases, as a member of the armed forces, would be legally obligated to do so under domestic law. Thus, it is fair for a state to presume that repatriating POWs would undermine its ongoing effort to defeat the enemy. Guantanamo detainees, on the other hand, have been declared as a class to be unlawful combatants, with no legal right to engage in hostilities. They are not members of the armed forces of a state, but are civilians who allegedly engaged in hostilities for a brief period many years ago. Absent specific evidence of an individual detainee’s intent or likelihood to re-engage in hostilities if released, there is no basis for presuming that he would. Under the law of war, civilians who directly participate in hostilities may be targeted or captured and detained in self-defense, but it is not clear under the law of war why a state should have the right to continue to detain individuals when the original rationale for the detention no longer applies.

A possible objection to this plan is that it would be inconsistent with Section 1021 of the National Defense Authorization Act for Fiscal Year 2012, which reaffirmed the president’s authority to indefinitely detain enemy combatants. However, a close reading of this provision suggests that it would not prevent the DOJ from amending its position with respect to cleared detainees. Section 1021 requires the president to dispose of detainees under the law of war. While Congress has declared that one of the lawful options for disposition under the law of war is indefinite detention until the end of hostilities, the act states that is it is not the only option and that the act does not “limit the authority of the President.” Review of the legality of detention by federal courts pursuant to a habeas corpus petition is a form of disposition under the law of war and Congress cannot prevent the DOJ’s views on the law of war from evolving. Indeed, there is support for such a change of position in recent Supreme Court precedent. In the Supreme Court’s 2004 decision in Hamdi v. Rumsfeld, the plurality opinion stated: “[W]e understand Congress’ grant of authority for the use of ‘necessary and appropriate force’ to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles.” However, the opinion included the following caveat: “If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel.” We are now at or beyond the unraveling stage.

There is no precedent in modern military history for detaining individuals determined to pose no threat to the detaining power for years on end, during which time the nature and circumstances of the conflict have changed so dramatically that it bears little resemblance to the armed conflict in which they originally took part. Both the Bush and Obama administrations have repeatedly stated that we are in a new kind of war in which new rules are needed. The law of war is designed to reduce unnecessary human suffering and facilitate the restoration of peace. Many of the detainees on the cleared list have now been held for well over a decade and some have been cleared for release multiple times by multiple administrations. Indefinite detention of those determined no longer to pose a threat to the detaining power is inconsistent with these purposes of the law of war. Regardless of whether one supports the president’s goal of closing Guantanamo, all should be able to agree that it is intolerable for a civilized nation to detain scores of men for purely political reasons. The president should direct the attorney general to immediately inform the DC Circuit that the Department of Justice no longer considers the detainees on the cleared list to be detainable. The hunger strike will end when cleared detainees start going home.

David Frakt is a Visiting Professor at the University of Pittsburgh School of Law and a Lieutenant Colonel in the US Air Force JAG Corps Reserve. He previously represented Guantanamo detainees before the military commissions and in habeas corpus proceedings in federal court.

Suggested citation: David Frakt, Release the Cleared Guantanamo Detainees to End the Hunger Strike, JURIST – Forum, Apr. 30, 2013, http://jurist.org/forum/2013/04/david-frakt-hunger-strike.php

This article was prepared for publication by David Mulock, an associate editor for JURIST’s academic commentary service. Please direct any questions or comments to him at academiccommentary@jurist.org