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Obama vowed and failed to transfer Guantanamo Bay prisoners. Now with war supposedly over, legal experts say, Washington loses basis for keeping them there.
WASHINGTON, DC — Shaker Aamer has spent more than a decade imprisoned without charges.
Captured in Afghanistan in 2001 and brought to Guantanamo Bay in 2002, the British resident has come to epitomize for many critics the legal limbo and frustrations of the United States' controversial detainment camp.
Cleared for release by George W. Bush’s administration in 2007 and again by Barack Obama’s in 2009, the now 45-year-old Saudi Arabian-born Aamer nonetheless remains in captivity. Critics say that’s thanks to congressional obstruction and an administration reluctant to sacrifice political capital.
But Obama says America's war in Afghanistan is ending, shifting the fight against Al Qaeda beyond the traditional battlefield. That raises new questions about a gamut of controversial actions Washington commits in the war’s name — from drone bombings to locking up terror suspects, like Aamer, indefinitely at Guantanamo Bay.
"Not just for the Obama administration but Bush as well, the state of war has provided legal cover to do a lot of things, including indefinite detention," said retired Col. Morris Davis, the former chief prosecutor for the US Military Commissions at Guantanamo Bay.
"Whenever a 'state of war' ends, the legal justification has to end as well. It's either going to require the creation of a new justification or for the administration to take some different actions."
During last week’s State of the Union speech, Obama declared: "After a decade of grinding war, our brave men and women in uniform are coming home."
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The president went on to signal a shift in the larger war on terror against an enemy that’s now "a shadow of its former self," but that is cast across broad swathes of land.
"Different Al Qaeda affiliates and extremist groups have emerged — from the Arabian Peninsula to Africa. The threat these groups pose is evolving. But to meet this threat, we don’t need to send tens of thousands of our sons and daughters abroad, or occupy other nations," the president said.
"Instead, we will need to help countries like Yemen, Libya and Somalia provide for their own security, and help allies who take the fight to terrorists, as we have in Mali. And, where necessary, through a range of capabilities, we will continue to take direct action against those terrorists who pose the gravest threat to Americans."
But legal experts believe this new phase of war should require a new legal framework.
"Congress has authorized a limited conflict against those responsible for 9/11 and those that aided or harbored them," said David Glazier, an international law professor at Loyola Law School in Los Angeles. "This should be Al Qaeda and the Afghan Taliban; it is not a blank check for the president to continually add other 'associated forces' to the mix to prolong the conflict."
Many experts like Glazier question the ongoing applicability of the Authorization for the Use of Military Force (AUMF), which was enacted a week after 9/11 and has served as the primary legal basis for the US military's response to the attacks.
According to the resolution, the AUMF authorizes the president "to use all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on Sept. 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."
But does the end of combat operations in Afghanistan and a weakened terrorist network blunt that authority?
"In past wars, Congress specifically expanded statutory authority to include additional groups within the scope of hostilities — it thus declared war five separate times in WWII, for example, against Japan, Germany, Italy, Romania and Bulgaria. No one seemed to think that the president could simply include other enemies within the existing conflict just because they were allied with current foes," Glazier said.
"So I think the first question becomes one of US domestic law — are we still in fact engaged in an ongoing conflict against an adversary that Congress has authorized hostilities against?"
So far, the Obama administration has cited the AUMF as justification for strikes against alleged terrorists in Yemen, Somalia and elsewhere in North Africa. Although, the threat posed by Al Qaeda in the Islamic Maghreb, or AQIM, remains unclear.
Even Chuck Hagel, Obama’s pick for defense secretary, has raised doubts.