David Glazier [*]

[Full text of this Article in PDF is available at this link]

Introduction

The events of September 11, 2001 (9/11) represented a profound shock to both the American public and world legal order. For the first time, a terrorist group—traditionally regarded as criminals—committed violence of sufficient magnitude to constitute an armed attack that could allow the United States to legally exercise the right of self-defense in response.[1]

President George W. Bush quickly termed 9/11 an act of war, and Congress agreed.[2] The Authorization for the Use of Military Force (AUMF) let the president use “all necessary and appropriate force” against those who “planned, authorized, committed, or aided the [9/11] attacks . . . or harbored such organizations or persons . . . .”[3] While the U.S. public focus has always been on al Qaeda, in reality the group controlled no territory where an armed conflict could be contested, and an immediate U.S. intervention into Afghanistan could have been problematic under international law. The Bush Administration thus pursued a more sophisticated legal approach, demanding that the Taliban hand over Osama bin Laden and deny refuge to al Qaeda, which it refused to do.[4] Only then did the U.S. government announce that it was exercising its inherent right of self-defense against al Qaeda and the Taliban, which continued to allow its territory to serve as a base of operations to “target United States nationals and interests.”[5]

U.S. combat operations in Afghanistan began in early October 2001 and by December, the Taliban had lost control of the country.[6] There would be no happy ending, however. U.S. forces had displaced but not defeated the Taliban.[7] They tracked Osama bin Laden to a cave complex in eastern Afghanistan known as Tora Bora, but the resulting opportunity to dismantle al Qaeda leadership was squandered, allowing him to flee into Pakistan.[8] For the next two decades, U.S. forces were enmeshed in their longest conflict against the Taliban.[9] The sporadic drone strikes against scattered al Qaeda remnants, and the manned raid to kill bin Laden in the sovereign territory of “neutral” Pakistan would legally have to be justified as individual acts of self defense.[10]

Many wondered if this conflict would have a clear endpoint. But after President Donald Trump reached a “peace agreement” with the Taliban, and his successor, Joe Biden, concluded that the continued U.S. combat presence in the “graveyard of empires” was futile, events moved at breakneck speed.[11] Afghan government forces crumpled within days of Biden’s August 14, 2021 announcement of the U.S. withdrawal, handing the Taliban an easy victory.[12]

The AUMF did more than just allow the application of combat power. As the U.S. Supreme Court confirmed in its 2004 Hamdi v. Rumsfeld plurality opinion, it also implicitly approved U.S. government exercise of the “fundamental incident[s]” of war, including preventive detention.[13] To that end, President George W. Bush cited AUMF authority in a November 2001 military order directing military detention and trials for non-citizen members of al Qaeda and those aiding or abetting terrorism.[14] The events of August 2021 answered the question when the hostilities launched in 2001 would end for the United States. But what are the legal consequences of that end of the hostilities for the Guantánamo detention facility created to hold detainees from Afghanistan, the flailing military commissions, and the thirty-seven men still languishing there?[15] Those questions are the subject of this Article.

…

---

[*] Professor of Law, LMU Loyola Law School. Commander, U.S. Navy (retired). The author wishes to thank Geoff Corn, Eugene Fidell, Brenner Fissell, Gabor Rona, Sean Watts, and Lauren Willis for their helpful suggestions, and Stefan Ecklund and Loyola Law Scho ol’s amazing reference librarians for their research assistance.

[1] See, e.g., Lord Robertson, Sec’y Gen., NATO, Statement of NATO’s Position on 9/11 Attack Against U.S. (Oct. 2, 2001), http://www.nato.int/docu/speech/2001/s011002a.htm [https://perma.cc/7HSZ-HRFE].

[2] President Bush Addresses the Nation, WASH. POST (Sept. 20, 2001), https://www.washingtonpost.com/wpsrv/nation/specials/attacked/transcripts/bushaddress_0 92001.html [https://perma.cc/55ZU-SK2L].

[3] Authorization for Use of Military Force, Pub. L. No. 107–40, 115 Stat. 224 (2001) [hereinafter AUMF].

[4] See Michael Byers, Terrorism, the Use of Force and International Law After 11 September, 51 INT’L &COMPAR. L.Q. 401, 406–10 (2002).

[5] Permanent Rep. of the United States of America to the U.N., Letter dated 7 October 2001 from the Permanent Rep. of the United States of America to the United Nations addressed to the President of the Security Council, U.N. Doc. S/2001/946 (Oct. 7, 2001).

[6] Council on Foreign Relations, Timeline: The U.S. War in Afghanistan, 1999–2021, https://www.cfr.org/timeline/us-war-afghanistan [https://perma.cc/T42U-BNNB] [hereinafter CFR].

[7] See id.

[8] See YANIV BARZILAI, 102 DAYS OF WAR: HOW OSAMA BIN LADEN, AL QAEDA & THE TALIBAN SURVIVED 2001 87–100 (2014).

[9] See generally CARTER MALKASIAN, THE AMERICAN WAR IN AFGHANISTAN: A HISTORY (2021) (detailing the history of the conflict through 2020).

[10] This result is mandated by international legal principles the United States exposited in the aftermath of the 1837 Caroline incident. See YORAM DINSTEIN, WAR, AGGRESSION AND SELF-DEFENCE 268–77 (5th ed. 2011).

[11] See Timeline, supra note 6; Joseph Biden, President, White House, Remarks by President Biden on Afg. (Aug. 16, 2021), https://www.whitehouse.gov/briefing-room/speechesremarks/2021/08/16/remarks-by-president-biden-on-afghanistan/ [https://perma.cc/6V6SX7K4].

[12] See, e.g., Amber Phillips, Trump’s Deal with the Taliban, Explained,WASH. POST (Aug. 26, 2021), https://www.washingtonpost.com/politics/2021/08/20/trump-peace-deal-taliban/ [https://perma.cc/M55J-HCPD]; Milton Bearden, Afghanistan, Graveyard of Empires, FOREIGN AFFS., Nov./Dec. 2001 (article by former U.S. CIA station chief in Pakistan presciently explaining why a U.S. military intervention in Afghanistan would ultimately fail); Joe Biden, President, White House, Statement by President Joe Biden on Afg. (Aug. 14, 2021), https://www.whitehouse.gov/briefing-room/statementsreleases/2021/08/14/statement-by-president-joe-biden-on-afghanistan/ [https://perma.cc/8RS5-H5G6] (explaining his rationale for military departure)

[13] Hamdi v. Rumsfeld, 542 U.S. 507, 519 (2004) (plurality opinion).

[14] Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57,831, 57, 833–34 (Nov. 13, 2001).

[15] The Guantánamo Docket, N.Y. TIMES, https://www.nytimes.com/interactive/2021/us/guantanamo-bay-detainees.html [https://perma.cc/4X55-HL8A] (last visited Apr. 4, 2022).