The Consequences of an Afghan Drawdown on Detention Authority

Following up on my last post regarding section 1031 of the NDAA FY 12 and the future of detention authority, I want to draw attention to what strikes me as a huge and looming issue--but one that is getting no attention so far as I can tell. Several stories in the media today highlighted the possibility of an accelerated Afghan drawdown schedule.  One way or another, it seems, we will greatly reduce our footprint there in the years ahead, and perhaps be out altogether.  When that time comes, one will no longer be able to point to the existence of U.S. involvement in relatively conventional conflict in Afghanistan, which is a factor that (though not often directly emphasized) runs through nearly all the GTMO habeas decisions.  When the deployment ends, in short, there will be immediate and sharp debate as to whether detention authority under the AUMF still exists.  Of course, we should have little interest in still holding Taliban members at that point.  But al Qaeda members?  That's a different kettle of fish.  If Congress is going to tinker with detention authority and the AUMF, perhaps the most useful thing it could do would be to speak clearly as to whether it wishes the government's detention authority to exist independent of whether there are conventional hostilities underway in Afghanistan.