The War on Terror Isn't Over, According to Biden's Justice Dept.

The War on Terror Isn't Over, According to Biden's Justice Dept.
"The Apotheosis of War" by Vasily Vereshchagin, 1871. Via Wikimedia Commons.

Edited by Sam Thielman

SINCE THE U.S. MILITARY departed Afghanistan a year ago, the Justice Department under President Biden has asserted in at least four cases that the end of that war has no bearing on the broader War on Terror.

Crucially, these are the cases of four people locked in Guantanamo—one of whom was subsequently freed as the result of his petition before a judge in his case, Amit Mehta. These men argued that surely the end of the war of which they are prisoners meant they could finally leave their cages.

Biden's Justice Department didn’t have to resist. It could have pocketed a political opportunity, provided by the end of the Afghanistan war, to roll back the War on Terror. It could have simply conceded the straightforward argument that people detained as the result of an active war should be free at the war's conclusion. Instead, the department chose to affirmatively assert that the broader War on Terror, alive and kicking,  provides all the authority necessary for continued detention.

As for Afghanistan, a declassified intelligence product provided to FOREVER WARS by the National Security Council assesses that al-Qaeda has not reconstituted itself in Afghanistan a year after the Taliban victory. It also suggests an al-Qaeda disproportionately weaker than the powers the Justice Department claims for combating it.

Viewed cumulatively, the Guantanamo cases help flesh out Biden's approach to the War on Terror as its senior-level geopolitical focus shifts toward China and Ukraine. The end of the Afghanistan war, the Justice Department asserts, imposes no restraint on the government's wartime detention powers.

Biden's favored formulation of his counterterrorism strategy, "Over the Horizon," accordingly shorthands his Augustinian position about detentions in the long twilight phase of the War on Terror. Release ought to occur at the executive's discretion, rather than binding, judicially enforced obligation.

THIS IS AN EXCHANGE between a Justice Department attorney and Judge Amit Mehta, a member of the DC district court. It happened on May 28, 2021, about four months before the Afghanistan withdrawal, in a case known as Gul v. Biden. Gul refers to Asadullah Haroon Gul, an Afghan detainee at Guantanamo, whom, you'll recall, neither the U.S. military nor the Justice Department has ever asserted is a member of al-Qaeda. Asadullah's faction of the Afghan insurgency made peace with the since-defunct, U.S.-backed government of Ashraf Ghani, and so Asadullah argued that his detention was unlawful. After the withdrawal, Asadullah argued that it, too, obviously ought to mark the end of his detention.

Justice Department: It is our position that hostilities against al Qaeda are global, and indeed that’s consistent with al Qaeda’s position…
Judge Mehta: So does that mean that anyone captured in the Afghan theater since 2001 that remains detained at Guantánamo can remain indefinitely detained until some peaceable event occurs with al Qaeda?... Do you think there would need to be something more than a complete withdrawal of troops from Afghanistan to establish a cessation of hostilities to conclude that the government’s detention authority has lapsed in this case?
Justice Department: [Y]es, because of the global nature of the conflict with al Qaeda.

If the war is over, the U.S. is obliged under international law—to say nothing of twenty years of assertions that it's not indefinite detention because it'll only last as long as the (endless) war does—to release detainees it has not convicted. Now, Mehta, and credit to him, did rule that Asadullah's detention was illegal—owing to the 2016 peace between Ghani and Asadullah's faction—and granted his habeas corpus petition, which resulted in his repatriation to Afghanistan last year. But Mehta rejected Asadullah's assertion that the war had ended. It turns out that part of Mehta’s ruling has been the more operative precedent established in Gul.

In October 2021, the month after the fall of Kabul, a Justice Department team led by Acting Assistant Attorney General Brian Boynton relied on Mehta's judgment in Gul to argue against a habeas petition brought by the oldest man caged in Guantanamo, 75-year old Pakistani citizen Saifullah Paracha. Among Paracha's arguments was that the Afghanistan war was over. But, drawing on Gul, Boynton's team contended that "the Government’s authority to detain under the 2001 AUMF is not dependent on the existence of hostilities in Afghanistan; hostilities against Al Qaeda and associated forces under the AUMF are ongoing." Not only did the Justice Department win, they won with the perverse argument that a man who has never been charged with a crime after 18 years in Guantanamo and another in a CIA black site was engaging in "an abuse of the writ" of habeas corpus by aggressively asking federal courts in more than one petition to adjudicate the basis for his detention.

Then comes Zayn al-Abidin Muhammad Husayn, known to the U.S. as Abu Zubaydah. (I should mention that most of these cases I'm finding in the paid-subscription federal legal database PACER, and that's why links are sparse.) Abu Zubaydah contended that since the basis for his detention related to his alleged activities in Afghanistan—that is, he was never a member of al-Qaeda, he was involved in an Afghan safe house for jihadist passage between Pakistan and Afghanistan—the end of the conflict ought to guarantee his freedom.

In reply, the Justice Department insisted that "active hostilities" were underway in post-withdrawal Afghanistan, and that the detention authorities provided by the 2001 AUMF continue to apply. Ruling on June 10, 2022 for the government, Judge Emmett Sullivan also cited Mehta in Gul: "there is simply no statutory hook for [Petitioner's] argument that the 2001 AUMF is limited to hostilities in Afghanistan." (Sullivan also inaccurately stated that Abu Zubaydah "is alleged to be part of and to have substantially supported al Qaeda.") As has become typical in judicial review of the War on Terror, Sullivan contended that, as a matter of constitutional principle, he is obligated to accept the administration's assertion that hostiiities in Afghanistan remain active, all because various officials have told Congress that al-Qaeda—of which Abu Zubaydah is not a member—retains "aspirations to reconstitute" in Afghanistan.

That's a significant move. It turns the question of when the U.S. may no longer cage someone on what an enemy is presumed to aspire to do, rather than, say, material circumstances such as present capabilities. And the posture of judicial deference to the executive on wartime matters ensures that the executive can let its imagination run wild. "For all of these reasons, and in view of the deference due to the Executive Branch’s determination, the Court concludes that hostilities against al Qaeda and associated forces remain ongoing," Sullivan concluded.

Lastly, Majid Khan, a Guantanamo detainee who both cooperated and finished his military-court-ordered sentence, contended in a novel case that the end of the Afghanistan war, combined with the end of his sentence, meant he should be able to walk out of Guantanamo immediately. Boynton's team again responded for the government. They both resisted Khan's argument that the relevant wartime detention authorities no longer exist post-Afghanistan and contended that the State Department is actively trying to negotiate with countries that might take Khan in. (Pakistan would likely torture or persecute Khan, so he's not going back to the country of his citizenship.) The effort at resettlement, however, meant that the court didn't have to adjudicate the merits of Khan's arguments about the impact of the end of the Afghanistan war on his detention.

In a footnote, Boyton pointed out the trend that I’m calling attention to in this piece. "In connection with the withdrawal of United States forces from Afghanistan, a number of Petitioners have brought claims asserting that the conflict in which they were captured has ended," wrote Boynton and company on Aug. 8. "The Government has explained in those cases that active hostilities in fact continue, and the Court has thus far uniformly agreed and declined to order release on those grounds." As exhibit A for the maintenance of "active hostilities," Boynton cited the execution of Ayman al-Zawahiri.

IN APRIL, the Biden administration finally established an office within the State Department to negotiate the repatriation or resettlement of the cleared Guantanamo detainees. (A filing from that office in Khan's case says the department has "engaged eleven countries" to find a home for Khan.) That's a positive development.

But as with the Obama administration before it, the Guantanamo-closure office at State would be a lot busier if the Justice Department weren't taking an aggressive approach to resisting the habeas cases from Guantanamo. Biden made a rhetorically maximal argument last August, contending that the Afghanistan withdrawal "is not just about Afghanistan. It’s about ending an era of major military operations to remake other countries." This spate of Justice Department detention objections add yet another caveat to that. The courts will only understand that “era” to be concluded if Congress repeals the 2001 AUMF, a course of action the Biden administration doesn't endorse and is not prioritizing. And perhaps, given the objections the Justice Department is putting up to Majid Khan's case, not even then.

It's also conspicuous how heavily the Justice Department relies on the courts' deference to the executive's description of a conflict. That posture of wartime prerogative has been enough for two decades' worth of judges to declare themselves powerless in the War on Terror. Sullivan's deference to the administration's statements about al-Qaeda's "aspirations to reconstitute" was accidentally rendered absurd earlier this month, when the New York Times reported that the intelligence agencies have found no evidence of such reconstitution a year after the Taliban took power in Kabul.

I asked the NSC about that, and it provided the following declassified assessment. All manner of caveats apply because neither the administration nor the Office of the Director of National Intelligence would answer my substantive questions. While this is not a National Intelligence Estimate, it apparently is an ODNI-overseen product with assessments from across the various intelligence agencies, though, again, I didn't get any answers about any meaningful dissent, over what, etc. And in case it needs to be said, intelligence assessments are not the same thing as the truth.

We assess that al-Qa’ida has not reconstituted its presence in Afghanistan since the U.S. departure in August 2021. Ayman al-Zawahiri was the only key al-Qa’ida figure who attempted to reestablish their presence in country when he and his family settled in Kabul earlier this year.
· We assess al-Qa’ida does not have a capability to launch attacks against the U.S. or its interests abroad from Afghanistan.
· We assess that less than a dozen al-Qa’ida core members with historical ties to the group remain in Afghanistan and probably were located there prior to the fall of Kabul; we have no indication that these individuals are involved in external attack plotting.
· Separately, members of al-Qa’ida’s regional affiliate, al-Qa’ida in the Indian Subcontinent (AQIS), in Afghanistan prior to the fall, are focused on activities like media production.
· AQIS is largely inactive, and claimed its last attack in 2016.
· We assess that neither the few remaining al-Qa’ida core members nor its regional affiliate are plotting to attack the Homeland.
· Al-Qa’ida has several affiliates we believe it would call upon outside the region to drive potential plots.

Probably need to keep people once believed to be kind of involved with this now-unconstituted and "largely inactive" entity, which no longer has the "capability to launch attacks against the U.S. or its interests abroad from Afghanistan," caged forever though.

ONE MORE THING about that intelligence assessment. It undermines the rationale stated by the Biden administration for refusing to return Afghanistan's sovereign wealth:

“We do not see recapitalization of the D.A.B. as a near-term option,” said Thomas West, the American government’s special representative for Afghanistan, referring to the initials for the central bank. He noted that American officials have engaged for months with the central bank about how to shore up Afghanistan’s economy but have not secured persuasive guarantees that the money would not fall into terrorist hands.
“We do not have confidence that that institution has the safeguards and monitoring in place to manage assets responsibly,” Mr. West said in a statement, previously reported by The Wall Street Journal. “And needless to say, the Taliban’s sheltering of Al Qaeda leader Ayman al-Zawahri reinforces deep concerns we have regarding diversion of funds to terrorist groups.”

"Diversion of funds" to a terror group that the intelligence agencies assess hasn't reconstituted itself a year after its former ally reconquered Afghanistan? Regardless, Afghanistan, even under the Taliban, shouldn't have to meet "responsibility" standards from its former occupier to get its own wealth and central bank back. Meanwhile, in the past month in Afghanistan, 178 people have reportedly died in flooding. Nice unfathomable cruelty we've got going on here.

IN MORE-VIOLENT WAR ON TERROR NEWS, U.S. Africa Command (AFRICOM) has been bombing Somalia this summer.

On July 17, AFRICOM announced a drone strike in response to an attack by al-Shabaab on the Somali army. On Aug. 10, the command announced three airstrikes from the day before, again in response to al-Shabaab attacks on the Somali army. On Aug. 17, AFRICOM announced a drone strike that appears to have operated as close air support for a Somali army position that came under another such attack. As is typical (and not to be accepted uncritically), AFRICOM claims to have hurt no one besides dead al-Shabaab fighters.

And now it’s not just Syria. Yesterday, U.S. Central Command (CENTCOM) said that U.S. attack helicopters responded to missile attacks on two U.S. positions in northeastern Syria. At the Pentagon, Colin Kahl, the undersecretary of defense for policy and someone whose DJ set I have seen, described it as a "calibrated" response to Iran-backed militias. It's worth remembering that the U.S. is not in Syria to confront Iran-backed militias, but it looks like John Bolton really did have the last laugh on that one.

EVERY TATTOO YOU'VE EVER GOTTEN hurts worse than a vasectomy.

On Monday, following a legally mandated 30-day waiting period, I got a vasectomy. Without getting too personal, it was shocking to discover, even after friends of mine who've already been snipped told me what to expect, that this particular testicular surgery is a painless procedure. I won't lie. Being awake and able to see the doctor take a scalpel to your genitals is not pleasant, and I pretended to read the same couple pages of Jonathan Levy's Ages of American Capitalism: A History of the United States. (Highly recommended halfway through.)

But I haven't taken so much as a single ibuprofen, because I haven't been in pain. I spent Monday afternoon and Tuesday mostly in bed, per the recuperative instructions I received, but I could have just as well worked. One conclusion, which I won't steer you away from embracing, is that my balls are simply that powerful.

It was hard not to see patriarchy working through my dick surgery. It wasn't just the ability to perfect a painless surgical procedure on a scrotum. It's the fact that we don't teach people with balls, as far back as in junior high school sex ed, that this painless and reversible procedure is a birth control option, and one they should consider, as adults, exercising. You don't need me to tell you about the vast, structural discrepancies between medicine focusing on men and women's pain. You definitely don't need me to tell you that the culture we live in treats birth control as the responsibility of the person who can get pregnant, rather than the responsibility of the person who can get that person pregnant. But as I walked pretty much upright out of the operating room, I thought about how preferable this would be, as a mass social expectation, to the extant alternatives of having people ingest hormones that can do significant damage to their mental health, to say nothing of inserting something into their cervix that resembles a corkscrew. Immediately it was obvious to the point of banality why that social expectation doesn't exist.

I'm not telling you what to do. But if you're a man reading this, and you have sex with people who may become pregnant, and this patriarchal discrepancy in birth-control responsibility bothers you, all I'm saying is you do not have to fear pain from a vasectomy. A friend who's had sex with someone shortly post-vasectomy also informs me that there's a possibility of (also painlessly) jizzing blood, and honestly that's just extremely metal. [We’d like to apologize for the targeted advertising Google is going to send you after opening this email.—Sam.]