No End to the “War on Terror,” No End to Guantánamo

The justification for both the invasion of Afghanistan (in October 2001) and the detention of prisoners in Guantánamo (which opened in January 2002) is the Authorization for Use of Military Force, passed by Congress on September 14, 2001, just three days after the 9/11 attacks.

Under the AUMF, the President is “authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

In 2004, in Hamdi v. Rumsfeld, the Supreme Court confirmed that the AUMF also authorizes the detention of those held as a result of the President’s activities, although, as law professor Curtis Bradley explained last week on the Lawfare blog, “Justice O’Connor’s plurality opinion in Hamdi made clear that the Court was deciding only the authority to detain in connection with traditional combat operations in the Afghanistan theater.” Bradley also noted, “As for the proper length of detention, O’Connor largely avoided the question, although she did refer to the traditional ability under the international laws of war to detain individuals until the ‘cessation of active hostilities.’”

With bin Laden’s death, the route should now be open for the President to assert that he has used “all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001,” and to get out of the unwinnable morass that is the ongoing occupation of Afghanistan.

Moreover, with a withdrawal of troops from Afghanistan, the justification for holding men at Guantánamo would also vanish, and the government would have the opportunity to return to the detention policies that served everyone perfectly well before the 9/11 attacks: prosecuting those involved with alleged terrorist activities in federal court, and holding soldiers as prisoners of war, protected by the Geneva Conventions, and freeing them at the end of hostilities.

That, however, is too sensible a suggestion for those who, rather than accepting bin Laden’s death as the logical end of a decade of “war” that has been both ruinously expensive and morally and legally disastrous, and that has also led to a chronic loss of life, want exactly the opposite: a springboard for an even bigger “War on Terror,” and a cynical excuse to keep Guantánamo open forever.

On the first point, with reference to the AUMF, a version of the 2012 defense bill, which is currently before the House Armed Services Committee, and which is known as the “Chairman’s mark,” because of the role played in its development by the committee’s chairman, Rep. Buck McKeon, proposes updating the AUMF rather than scrapping it, to “reflect,” as Spencer Ackerman explained in an article for Wired, “that the al-Qaeda of the present day is way different than the organization that attacked the US on 9/11.” Ackerman added, “While the original Authorization tethered the war to those directly or indirectly responsible for 9/11, the new language authorizes ‘an armed conflict with al-Qaeda, the Taliban, and associated forces,’ as ‘those entities continue to pose a threat to the United States and its citizens.’”

Rep. McKeon has been arguing since last fall that Congress needs to approve, or disapprove of America’s current state of war, but such a revision to the AUMF — potentially expanding the “War on Terror,” with the explicit approval of Congress, into Pakistan, Yemen, or anywhere the President perceives a threat and wishes to act — is “a big expansion of executive authority,” in Spencer Ackerman’s words, and, according to Karen Greenberg, the executive director of the Center for Law and Security at New York University, is close to “terrorism creep,” It is also, In Greenberg’s opinion, hasty. Before thinking about expanding the “War on Terror,” she explains, the US “need[s] to absorb first what the death of bin Laden means. We need to stop and think and re-think. The idea that we’re going to keep reacting and not have a thoughtful time out is just unacceptable.”

From my point of view, the proposal for the AUMF, as well as opening up new “battlefields” without necessary scrutiny, also breathes new life into a problem that has plagued the “War on Terror” from the beginning, and that should now be coming to an end, rather than being indefinitely sustained: the confusion of the Taliban, fighting a military conflict in Afghanistan (and in the Pashtun parts of Pakistan) with al-Qaeda, a terrorist organization.

This failure to distinguish between the Taliban and al-Qaeda has bedevilled those held at Guantánamo, who were labeled as “enemy combatants” and easily dressed up as terrorists, as the recent release by WikiLeaks of classified military documents relating to the prisoners has shown, when, in fact, the prison has never held more than a few dozen prisoners genuinely accused of involvement with terrorism. As a result, the prison has largely been responsible for demonizing soldiers instead of terror suspects, and this remains as true today, with 172 men still held, as it was when Guantánamo opened.

Despite the new proposal for the AUMF, it is by no means certain that the Obama administration wants a new Authorization. In the wake of bin Laden’s death, John Brennan, the President’s advisor on homeland security and counterterrorism, suggested that bin Laden’s death and the pro-democracy revolts in the Middle East were the beginning of the end for al-Qaeda, and Jeh Johnson, the Pentagon’s top lawyer, is also resistant. In March, he told the House Armed Services Committee that the 2001 AUMF was “sufficient to address the existing threats I’ve seen.”

The administration’s main problem with the proposal for a new version of the AUMF may relate more to Guantánamo, whose closure remains an objective of the administration, as Attorney General Eric Holder explained in the wake of bin Laden’s death, than to military operations in general. The proposal for a new AUMF “would keep Guantánamo Bay open practically forever,” in Spencer Ackerman’s words, because it reintroduces military assessments regarding the threat level posed by the prisoners, prevents the resettlement of prisoners in the US (even if a review panel assesses that they are not a threat), makes it almost impossible to transfer prisoners to other countries, and prevents the administration from buying or adapting a facility to hold Guantánamo prisoners in the US — mostly replays of the abominable additions to this year’s defense spending bill, but with the “military assessments” as a bonus.

Moreover, Rep. McKeon and his supporters are not the only lawmakers intent on keeping Guantánamo open, even though the object of most of the interrogations over the last nine years — Osama bin Laden — is now dead. On May 11, six Senators — the Republicans Lindsey Graham, Kelly Ayotte, Scott Brown, Saxby Chambliss and Marco Rubio, plus Joe Lieberman — introduced the “Detaining Terrorists to Secure America Act,” based on a right-wing response to bin Laden’s death, which, in defiance of expert testimony by numerous interrogators over the last two weeks, relies on a false belief that detention in CIA “black sites,” the use of torture and the existence of Guantánamo all contributed to locating bin Laden.

This mistaken approach to intelligence gathering ignores the truth — that interrogators using lawful, non-coercive methods did not need torture, “black sites” or Guantánamo to secure the necessary information. In fact, Guantánamo, a prison in which randomly seized prisoners were subjected to years of coercion until they told lies about each other, is the opposite of the targeted, specific intelligence from a handful of significant prisoners that was needed to begin the long process of finding bin Laden.

Even so, in comments after the proposed legislation was announced, Sen. Chambliss, the ranking Republican member of the Senate Select Committee on Intelligence, and a member of the Senate Armed Services Committee, focused specifically on Guantánamo, with the purpose of keeping it open forever and using it for the detention and interrogation of new prisoners, claiming, “The events of last week underscore the importance of information we obtain for detainees, particularly those at Guantánamo Bay.” He added, “For months, we have been asking administration officials where we could hold detainees we may capture. This legislation provides an answer and gives us the chance to gather actionable intelligence to keep our country safe.”

Sen. Chambliss also drew on discredited claims, emanating from the Pentagon, in which it has been claimed, without evidence, that 1 in 4 of the 600 prisoners released from Guantánamo — an impossible total of 150 prisoners — have “returned to the battlefield,” or engaged in terrorist activities against the US. “[A]s recidivism rates are more than 25 percent,” Sen. Chambliss said, “we cannot afford to let more dangerous detainees return to the fight.”

Like the amendments to the 2012 defense bill in the House of Representatives, the “Detaining Terrorists to Secure America Act” would also prohibit the transfer of any prisoner to any facility on the US mainland, preventing the President from closing it, while, as the Senators hope, adding to its population.

With all this opposition, it is difficult to see how the “peace dividend” that should result from bin Laden’s death can be realized, but that, of course, is no reason for opponents of war, of arbitrary detention and torture, of pointless and ruinously expensive foreign policies and counter-terrorism policies to give up. On the contrary, it is time for us to speak up louder than ever.