Withdrawal From Afghanistan Marks Guantanamo's Endpoint

Abstract

For two decades following the 9/11 attacks, U.S. forces engaged in combat in Afghanistan and used implied congressional authorization of the “fundamental incidents” of war to conduct detention and military trials at Guantanamo Bay. Conflict in Afghanistan has ended, but detention and military commissions proceedings continue absent political will to end them. But that is no longer an option – as the Supreme Court held in Hamdi v. Rumsfeld, detention authority ends at the close of “active hostilities.” And as it held in Hamdan two years later, military commissions lack normal constitutional authority, depending on the availability of congressional and executive wartime powers for their existence. These trials, too, cannot legitimately continue post-conflict. While pundits continue to propose winding down Guantanamo by seeking detainee transfers with “security assurances,” the law of war mandates prompt repatriation. There is no “bad dude” exception based on general threat perceptions – only an actual criminal sentence or pending charges justify delay. Both the law of war and the Constitution require that the U.S. must now charge detainees in federal courts, extradite them to another country for prosecution, or promptly repatriate them. The Article provides recommended dispositions for the thirty-nine detainees remaining at Guantanamo at the time of the U.S. withdrawal from Afghanistan consistent with residual law of war mandates. It concludes by arguing that this outcome actually serves larger overall U.S. national interests – Guantanamo’s fiscal, legal, moral, and political costs have long outweighed any benefits.