Related:

30 July 2015, US District Court, DC: Al Warafi v. Obama (Memorandum Opinion) (PDF)

16 July 2015, NYT: U.S. Steps Up Airstrikes in Afghanistan, Even Targeting ISIS

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http://www.nytimes.com/2015/07/31/us/us-taliban-fight-goes-on-so-guantanamo-detainee-stays-court-says.html

JULY 30, 2015

U.S.-Taliban Fight Goes On, So Guantanamo Detainee Stays, Court Says

By CHARLIE SAVAGE

WASHINGTON -- The United States military may continue to hold a Guantanamo Bay detainee accused of being a Taliban fighter even though President Obama has repeatedly said that the United States' war in Afghanistan has ended, [1] a federal judge ruled Thursday.

The 14-page ruling [2] was a rare judicial attempt to resolve legal questions that may have implications for years to come -- including how a war against a loose-knit organization of terrorists and their splintering, morphing allies can come to a definitive end, and who decides whether it has done so. Under the laws of war, when a war ends, wartime prisoners must be released.

The judge, Royce C. Lamberth of the Federal District Court for the District of Columbia, ruled that regardless of what Mr. Obama has said about the status of the war in Afghanistan, there continues to be fighting between the United States and the Taliban. As a result, Judge Lamberth said, the government retains the legal authority to detain enemy fighters, including Taliban members, to prevent them from returning to that fight.

"A court cannot look to political speeches alone to determine factual and legal realities merely because doing so would be easier than looking at all of the relevant evidence," the judge wrote. "The government may not always say what it means or means what it says."

The detainee who brought the case is Muktar Yahya Najee al Warafi, a Yemeni man who was captured by the Northern Alliance, suspected of fighting with a Taliban militia, in November 2001.

He was turned over to the United States, which took him to Guantanamo in 2002.

Mr. Warafi is among the 52 detainees of the 116 remaining at the prison who have been recommended for transfer if security conditions can be met in the receiving country. Like many other Yemenis on the list, he has remained at the prison because Yemen is in chaos.

Federal courts had previously upheld the legality of Mr. Warafi's detention, ruling that the evidence showed he was probably a Taliban fighter. But his new challenge raised a different issue: whether the armed conflict is over.

At the end of 2014, the United States formally ended its combat mission in Afghanistan and shifted to training Afghan forces and performing counterterrorism raids, reducing to fewer than 10,000 troops. It no longer holds wartime detainees in Afghanistan or conducts routine ground patrols, but continues to fight Taliban units that threaten American troops.

Since then, Mr. Obama has repeatedly described the war there as over in his public speeches, although some fighting has continued. [3] In June, American drones and warplanes fired 106 weapons at militants in Afghanistan -- including some who claim allegiance to the Islamic State. That was more than twice as much as in any previous month this year, but still below previous years, military statistics show. [4]

Lawyers for Mr. Warafi argued that Mr. Obama had the power to decide when the war was over, and his public comments showed that the government's legal authority to detain suspected Taliban prisoners had expired.

The Justice Department agreed that Mr. Obama had the power to decide when it was over, but submitted a letter to the court in which Mr. Obama had said that the armed conflict in Afghanistan, including against the Taliban, continued. Mr. Warafi's lawyers said the Obama administration was trying to go back on [5] the president's previous pronouncements.

But Judge Lamberth said that both sides were wrong in saying that it was up to the president alone to say whether a war was over for legal purposes. He said that courts had to independently determine whether fighting was still going on, regardless of political speech.

Because the fighting goes on for now, he said, the government still has legal authority to keep detaining Mr. Warafi.

Judge Lamberth's reasoning implied that someday, a court could rule that the war was over and require that detainees be freed, even if the president at that time disagreed. Still, David Remes, one of the lawyers for Mr. Warafi, expressed disappointment, in part because the existence of "fighting" as triggering wartime detention powers is a lower standard than a full-blown "armed conflict."

The ruling, he said, "seemed to endorse the idea of a limitless forever war under which the government can continue to hold men for as long as there is 'fighting.' "

[1] https://www.whitehouse.gov/the-press-office/2015/05/25/remarks-president-memorial-day

[2] https://www.documentcloud.org/documents/2187132-warafi-opinion.html

[3] http://www.nytimes.com/2015/07/16/world/asia/afghanistan-us-steps-airstrikes-isis.html

[4] http://www.afcent.af.mil/Portals/1/Documents/Airpower summary/30 June 2015 Airpower Summary.pdf

[5] https://www.documentcloud.org/documents/2187148-mukhtar-reply-re-suppl-mem-1-pdf.html