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As Obama winds down Afghan war, what’s next for Gitmo?

Obama vowed and failed to transfer Guantanamo Bay prisoners. Now with war supposedly over, legal experts say, Washington loses basis for keeping them there.

"My understanding is that at this time, there is no credible evidence that AQIM is a direct threat to the US homeland,” Hagel said at his Senate confirmation hearing.

In 2004, a plurality of the Supreme Court ruled in Hamdi v. Rumsfeld that enemy combatants — both in the United States and at Guantanamo Bay — must be given the ability to challenge their detention. So far, however, the court has declined to address the length of detention issue, which analysts say suggests it’s a political question that can only be resolved by Congress and the president.

"The Hamdi decision implied that US detention authority would persist as long as there was active combat in Afghanistan, but doesn't conclusively say that it must end at that point," Glazier said.

The ambiguity will almost certainly spark fresh legal challenges.

"The end of combat operations will give strong legal arguments that the authority to hold people also ends," said Thomas Wilner, a partner with Shearman & Sterling who represented Guantanamo detainees in the Rasul v. Bush and Boumediene v. Bush cases before the high court.

What is less ambiguous, at least according to legal scholars, is what should happen to those members of the Taliban detained by the United States.

"Any authority to detain Taliban personnel, other than those actually facing US criminal charges, absolutely ends with the end of a US combat role," Glazier said.

But legal imperatives and political reality rarely track.

"It will require the end of the war against terrorism. And, as Colin Powell has pointed out, the US has created a 'military-industrial-terrorism complex,'" said retired Col. Lawrence Wilkerson, who served as chief of staff to then-Secretary of State Powell. "It will be very difficult to put that creation back in its cage."

Last week, Obama announced plans to halve the number of US soldiers deployed in Afghanistan over the year, part of Washington's goal to pull out almost all its troops by the end of 2014. The drawdown will occur in the shadow of the 2014 midterm elections, which could undermine what little interest exists to take action on a case that offers no political payoff.

"Soon you're going to have lawmakers, particularly on the House side where the more hard-core conservatives tend to be located — who will be coming up on re-election or someone will be trying to unseat them," Davis said. "No one is going to win saying 'I got the detainees out of Guantanamo,' so there's no incentive politically to do that."

More than 150 detainees remain in Guantanamo. Eighty-six have been cleared for transfer or release, and 46 are being held indefinitely. The military is currently prosecuting seven detainees before military commissions and plans to prosecute 24 others. Three detainees are serving sentences.

Obama has taken criticism for failing to fulfill his promise to close Guantanamo. The White House has said it’s not for a lack of trying.

Congress has continually blocked the release of the detainees approved for transfer or release, passing legislation preventing federal money from being used to bring prisoners to the United States.

"Congress has put the administration in a box canyon. It lacks the freedom of movement that it needs to get rid of the long-term detainees," said Eugene R. Fidell, who teaches military law at Yale Law School. "Congress has rendered it impossible to do anything with them."

"The drawdown of our personnel in Afghanistan is not going to change that unless Congress changes that or the president violates the legislative framework or the Supreme Court of the United States does something to break the gridlock," Fidell added.

In January, the president signed the National Defense Authorization Act, which mandates military custody for Al Qaeda-linked terror suspects, despite threatening to veto it over that and other provisions related to the prison camp.

Obama has blamed the legislative branch for preventing him from closing Guantanamo.

"There are some things that we haven't gotten done. I still want to close Guantanamo, we haven't been able to get that through Congress," Obama said during an appearance on Comedy Central's "Daily Show" with host Jon Stewart in October.

But critics say the president's continuing failure to take the lead is to blame.

"I have not seen in him a willingness to make this an issue that he's going to sell in the local elections," said Wilner, of Shearman & Sterling. "I think he truly feels Guantanamo is a joke and that it's a bad thing for the US, but he's unwilling to put prestige behind it. And there's always something more important. I think somebody needs to push him on that. Hopefully as his legacy becomes more important to him, he'll do it."

Signaling a possible move in that direction was an administration-approved speech by Jeh Johnson, former general counsel for the Defense Department, in the fall.

“In its 12th year, we must not accept the current conflict, and all that it entails, as the ‘new normal,’” Johnson said in a speech at the Oxford Union in November.

"I do believe that on the present course, there will come a tipping point — a tipping point at which so many of the leaders and operatives of Al Qaeda and its affiliates have been killed or captured, and the group is no longer able to attempt or launch a strategic attack against the United States, such that Al Qaeda as we know it, the organization that our Congress authorized the military to pursue in 2001, has been effectively destroyed."

http://www.globalpost.com/dispatch/news/regions/americas/united-states/130219/barack-obama-afghan-war-guantanamo-bay-gitmo