US President Joe Biden’s decision to fully withdraw American troops from Afghanistan raises questions about the fate of the remaining prisoners at Guantanamo Bay as well as the future of the detention center, according to experts.
At least two prisoners, who have already challenged their detention, are updating their complaints to include the announced Sept. 11 troop pullout as a reason for their release, according to a report by The Hill on Sunday.
The controversial prison currently holds 40 inmates, down from 800 after its 2002 opening in the aftermath of the 9/11 terrorist attacks on US soil.
Six of those inmates have been cleared for transfer and seven have been charged in the military commission system, including the five 9/11 suspects, The Hill reported.
Congress’ war authorization has been used as the legal justification for indefinite detention at Guantanamo, but it remains unclear that would continue after US troops’ withdrawal from Afghanistan, The Hill noted.
“I think the short answer is that we just don’t know,” Steve Vladeck, a University of Texas law professor, told The Hill about the possible effect troop pullout will have on the prison.
“It clearly provides the remaining Guantanamo detainees with a new ground on which to challenge the legal basis for their continuing military detention, and one that is not necessarily foreclosed by existing precedent,” he told the news outlet.
Vladeck, however, added that it is not clear whether courts will accept those arguments as they might simply say the so-called fight against al-Qaeda terrorist group has not ended yet.
“But it’s not at all clear that courts will be sympathetic to those arguments, not just because they haven’t been to date, but because the Executive Branch is likely to argue that the conflict with al-Qaeda isn’t ending just because we’re leaving Afghanistan.”
During the 2020 presidential race, Biden’s campaign said that he would continue to support closing the detention center but did not say how he would do it.
His administration is currently reviewing the facility with the intention of closing it and 24 Senate Democrats are pushing that.
They sent a letter to Biden last week, saying that he could close the facility with “sufficient political will and swift action,” according to The Hill.
“After years of indefinite detention without charge or trial; a history of torture and cruel, inhuman, and degrading treatment; and multiple attempts at a thoroughly failed and discredited military commission process, it is past time to close Guantanamo’s detention facility and end indefinite detention,” read the letter spearheaded by Sens. Dick Durbin of Illinois and Patrick Leahy of Vermont.
Earlier this month, when Biden announced he was ordering a full pullout from Afghanistan by Sept. 11, he declared, “It’s time to end the forever war.”
Alli McCracken Jarrar of Amnesty International told The Hill that if Biden is serious about ending the “forever war,” he should also close the detention facility.
That would be a signal by Biden “that he’s committed to his human rights obligations,” she added.
This past week, lawyers for two Guantanamo detainees filed motions seeking their clients’ release citing the withdrawal. The motions were first reported by The New York Times.
The two detainees are Khalid Qassim, a 44-year-old a Yemeni man who has been held without trial at Guantanamo for nearly 19 years, and Asadullah Haroon Gul, 40, who was captured by Afghan forces in 2007.
“There can no longer be any legal basis under the [authorization for the use of military force] or otherwise for Qassim’s detention by the United States,” lawyers for the Yemeni man argued.
Lawyers for the other inmate also said, “The law is clear: Asadullah gets to go home now, regardless of whether, as the government incorrectly contends, he was part of or substantially supported al-Qaeda.”
The Guantanamo detention camp is a United States military prison located on the coast of Guantánamo Bay in Cuba, where many terror suspects have been kept indefinitely without charge amid reports of torture.