The war in Afghanistan has been violent, ambiguous and confusing. President Biden has ordered that all U.S. troops be withdrawn by September 11, and they may all be out as soon as next month. Mr. Biden is also planning, quietly, to close the terrorist detention facility at Guantanamo Bay, Cuba (Gitmo). He and congressional Democrats further plan to modify or repeal the 2001 and 2002 Authorizations of the Use of Military Force (AUMFs) which gave President Bush authority for the Afghanistan and Iraq campaigns.
When the last U.S. troops leave Afghanistan, Mr. Biden will undoubtedly declare that war is over although it won’t be for the Taliban or the Kabul government. Some will say, incorrectly, that his declaration makes the 2001 AUMF moot.
Both the House and Senate will soon pass repeals of the Iraq AUMF which the president said he will sign. Mr. Biden has stated no position on modification of the Afghanistan AUMF.
Mr. Biden and Congress need not modify the 2001 AUMF and must not repeal it. Any changes to it could strangle our continuing conflict with al Qaeda and will certainly create enormous legal problems for our continued detention of the al Qaeda terrorists at Gitmo.
Mr. Biden reportedly plans to persuade some nations to accept many of the remaining terrorists and then move the rest to U.S. jails. Congress has repeatedly blocked any transfer of Gitmo inmates to the U.S., but Mr. Biden evidently believes he can convince Congress not to do so again.
The original AUMF, enacted in September 2001, authorized the president to use military force against “… 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.” It was a declaration of war against al Qaeda and its allies with no expiration date.
When I visited Gitmo in 2005, there were about 520 terrorist prisoners incarcerated there. Most have been repatriated or moved to prisons in other countries. Many of those released have returned to the battlefield to kill Americans.
Of that number, all but two are dedicated members of al Qaeda, including senior operations commanders and facilitators who have enabled al Qaeda members to travel internationally. The other two have worked closely with al Qaeda and are members of other terrorist networks. They are too dangerous to ever release.
Former President Obama allowed no new terrorist prisoners to be sent to Gitmo. Although he promised to fill Gitmo with “bad guys,” former President Trump didn’t. No new prisoners have been sent to Gitmo since 2008.
Operating Gitmo is very costly, about $13 million per prisoner per year or about $520 million annually. The proponents of closure argue that it would be cheaper and better to either release them or to bring them to US prisons. Nonsense.
The 40 who remain in Gitmo represent a considerable danger to us and our allies. Some have already been tried on terrorism charges and sentenced to long terms – including life terms – of imprisonment. Some cannot be tried by the military tribunals set up for that purpose because the evidence of their war crimes was either the product of enhanced interrogation – which some contend is torture – or the evidence is still too secret to be disclosed. (The legal definition of torture has been significantly changed since 2001. Waterboarding wasn’t “torture” until 2005, years after it was used in a small number of CIA interrogations of captured al Qaeda members.)
Gitmo was established to hold terrorists as “unlawful combatants,” people who are not granted the same rights under the Geneva Conventions as prisoners of war. That classification is precisely correct because they fight under no flag, wear no uniforms and intentionally target civilians.
This distinction was made because it is factual and because it can be an intelligence advantage over other terrorists when a captured terrorist can be persuaded to divulge the locations of fellow terrorists and, possibly, their targets. That categorization is still valid, although all of the names have been disclosed.
The “Gitmo bar association” – activist lawyers providing legal representation to the inmates – have already succeeded in getting significant relief from the Supreme Court. Under several decisions Gitmo inmates have been granted the right to the writ of habeas corpus and protection of Article 3 of the Third Geneva Convention. Former President Obama also labeled them, incorrectly, as “enemy combatants,” discarding the “unlawful combatants” categorization.
The 2001 AUMF still provides for a war against al Qaeda and its supporters. But what if Mr. Biden persuades congress to allow him to move some of the Gitmo inmates to the US?
If some or all of the Gitmo inmates are transferred to U.S. prisons there will be a collision – engineered by the Gitmo bar association – between the AUMF and the Constitution which provides every person within US jurisdiction the right to a speedy trial, disclosure of all evidence against them and trial before a jury of their peers. The Constitution will prevail and the Gitmo terrorists brought here will, sooner rather than later, be released into our country.
Congress should never allow any Gitmo inmates to be transferred to the U.S. Giving them the rights they would have under our Constitution would be a terrible injustice to those who died on 9-11 and those who fought and died against them in Afghanistan and Iraq.
• Jed Babbin, a deputy undersecretary of Defense in the George H.W. Bush administration, is the author of “In the Words of Our Enemies.”
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