Guantanamo Detainee Files Supplemental Memorandum on the End of the War in Afghanistan

As explained previously on Lawfare, al Warafi is challenging his detention at Guantanamo Bay, arguing that because the armed conflict between the United States and Afghanistan has ended, the U.S. government no longer has the legal power to detain him. But the government disagrees; it claims that although the United States' larger mission indeed has come to a close, active hostilities nevertheless persist---and, accordingly, so does related authority to detain al Warafi.

The memorandum attaches two exhibits---the more detailed of the which is Obama’s Memorial Day Speech delivered at Arlington National Cemetery. (The other attachment, a White House Weekly Address of May 23, seems to abridge the Memorial Day remarks.) In both, President Obama asserts that Memorial Day 2015 is particularly meaningful---among other things because it marks the first since the United States ended its "war" in Afghanistan.

The war-is-over theme is visible in the Arlington address. For example, after a general welcome and a reflection on the reasons for celebrating soldiers lost during war, Obama says “[t]oday is the first Memorial Day in 14 years that the United States is not engaged in a major ground war.” Along similar lines, the President elsewhere recognizes two officers, Specialist Wyatt Martin and Sergeant First Class Ramon Morris, who were the “last two Americans to give their lives during our combat mission in Afghanistan.” On the other hand, Obama also observes that less than 10,000 troops remain on a mission to train and assist Afghan forces; that Afghanistan remains dangerous; and that U.S. personnel continue to risk their lives. According to President Obama, Army Corporal John Dawson, a combat medic, became the first service member to give his life “to this new mission to train Afghan forces.”

Citing the President's remarks, the supplemental filing concludes by claiming that the President of the United States has “unequivocally declare[d] that the war in Afghanistan has ended;" for the detainee, such a declaration completely forecloses further detention under the laws of war.

It remains to be seen how the court will treat the President's speech, radio address, and other documents cited by al Warafi---how it will interpret their meaning, and the legal weight it will accord to them---in deciding whether the United States retains the power to hold the detainee at Guantanamo.