Do Taliban Detainees Need to Be Released at End of Afghanistan Conflict?

The legal definition of the end of armed conflict in Afghanistan could determine whether detainees like those released in the Bergdahl swap can remain in custody.

The "Camp Six" detention facility of the Joint Detention Group at the US Naval Station in Guantanamo Bay, Cuba.
National Journal
Kaveh Waddell
June 11, 2014, 10:05 a.m.

In the wake of Pres­id­ent Obama’s an­nounce­ment that the U.S. will pull out the ma­jor­ity of its com­bat troops from Afgh­anistan by the end of 2014, ques­tions have aris­en in Con­gress about the status of Taliban de­tain­ees taken dur­ing the 13-year armed con­flict.

“We’re cur­rently in armed con­flict with the Taliban and al-Qaida,” said Steph­en Pre­ston, gen­er­al coun­sel to the De­part­ment of De­fense, speak­ing in front of the House Armed Ser­vices Com­mit­tee on Tues­day. “At some point, the armed con­flict with the Taliban ends.” At that point, Pre­ston said, the U.S. will no longer have a basis in in­ter­na­tion­al law to hold bel­li­ger­ents.

But most agree that the armed con­flict with Taliban will not end when U.S. forces pull out of Afgh­anistan. The battle with the Taliban is gen­er­ally bundled in­to the lar­ger fight against al-Qaida, and so the Obama ad­min­is­tra­tion could use the Au­thor­iz­a­tion for Use of Mil­it­ary Force (AUMF) to hold de­tain­ees like those it re­leased in ex­change for Sgt. Bowe Ber­g­dahl long past the end of troop pres­ence in Afgh­anistan.

Some in Con­gress are try­ing to lim­it the AUMF, which the Bush and Obama ad­min­is­tra­tions have used to jus­ti­fy in­def­in­ite de­ten­tion at Guantanamo Bay and mil­it­ary ac­tion against forces “as­so­ci­ated with” al-Qaida world­wide. A meas­ure in­tro­duced by Rep. Adam Schiff, D-Cal­if., would al­low the AUMF to ex­pire in 2015.

But in Wed­nes­day’s hear­ing, Rep. Adam Smith, D-Wash., re­af­firmed that the U.S. would not be com­pelled to re­lease Taliban de­tain­ees “as long as we’re fight­ing al-Qaida and as long as we’re fight­ing their as­so­ci­ated forces.”

Pre­ston was called to testi­fy along­side De­fense Sec­ret­ary Chuck Hagel to an­swer ques­tions about the pris­on­er swap that traded Ber­g­dahl for five high-level Taliban de­tain­ees from Guantanamo Bay.

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