DANIELLE KURTZLEBEN, HOST:
The U.S. war in Afghanistan has lasted nearly 20 years. And this week, President Biden said the U.S. military operation there will end on August 31, just shy of the 20th anniversary of the 9/11 attacks. It raises the question of what this could mean for Guantanamo. The U.S. military prison there was created to hold enemy fighters captured in Afghanistan and the so-called war on terror. So what happens to those prisoners of war as the Afghanistan conflict ends? For that, we're joined by Sacha Pfeiffer of NPR's investigations team. She's made several trips to Guantanamo and has been covering the 9/11 criminal case for several years.
SACHA PFEIFFER, BYLINE: Hi, Danielle. Thanks for having me.
KURTZLEBEN: So, Sacha, it seems worth reminding listeners how many prisoners are still being held at Guantanamo. What's the current count?
PFEIFFER: There are 40 men left. Over the years, Gitmo has held nearly 800 people, but now it's down to just those 40. And almost three-quarters of them have never been charged with anything. They're known as forever prisoners. They're being detained indefinitely, some for almost two decades. So when you ask what U.S. troops leaving Afghanistan means for Gitmo, it's really the fate of these forever detainees that we're talking about.
KURTZLEBEN: Well, so how is the U.S. government justified holding those forever detainees for so long without charging them with any crimes?
PFEIFFER: The whole legal foundation of Guantanamo is that after 9/11, Congress passed what's called an authorization for use of military force to go after whomever was responsible for those attacks, like al-Qaida and the Taliban. That law gives the president sweeping war powers, and the government claims that includes the ability to detain prisoners without charge or trial. But it's unclear when those powers expire or even what the parameters of war are.
So U.S. troops exiting Afghanistan raises these complicated legal questions about whether a war can still be considered ongoing after the fighters leave. And if the fighters leave, do the prisoners have to be let go? I spoke about this with Ben Farley, a Guantanamo defense attorney. He said President Biden ending the war weakens the argument that we can hold prisoners forever due to some larger, amorphous global war on terror.
BEN FARLEY: Without having troops in Afghanistan, it's going to be harder to say, well, yeah, you said the war was over and, also, there are no troops in the field and also nobody's shooting but the war remains ongoing. It's just going to be harder to say that with a plain face.
KURTZLEBEN: Also, after nearly 20 years, I imagine there has been some legal pushback on all of this. Have any courts weighed in?
PFEIFFER: Yes, there's been lots of litigation, and courts have generally avoided specifically addressing whether these vast presidential powers are specific to a certain geography. They've just been able to point to the war in Afghanistan as justification for holding detainees. But human rights activists and lawyers for prisoners say a war has to have a defined boundary so we know when it's over and when it's time to release prisoners. They say it doesn't make sense to argue that the war is over for purposes of bringing troops home, yet it continues for purposes of detaining people captured by those troops.
Another Guantanamo defense attorney I spoke with, Michel Paradis, said now that the U.S. is leaving Afghanistan, he assumes Guantanamo prisoners are preparing legal motions that will eventually land before the Supreme Court.
MICHEL PARADIS: I can imagine there will be at least a few detainees saying that you can no longer hold me because the whole reason you've been holding me all this time, all these decades now has been the claim that if I'm released, I will be a danger in the war in Afghanistan. And without that, why are you still holding me?
KURTZLEBEN: Well, let's say the prisoners do win that argument. Then what would happen next?
PFEIFFER: That's tricky because the U.S. has to find countries to take them, and some of those prisoners are from collapsed countries like Yemen. But since President Biden has entered office, at least six Guantanamo detainees have been cleared for transfer to other countries. Although another Guantanamo defense attorney, Wells Dixon, points out that just because transfers have been approved does not mean they're actually imminent.
WELLS DIXON: There are detainees in Guantanamo today who have been approved for transfer for more than a decade, and they're still in Guantanamo. So while it's undoubtedly a good thing to be approved for transfer, it doesn't mean you're going to get released. And it's certainly not substantial progress toward closure.
PFEIFFER: But, Danielle, it at least lays the groundwork for emptying Gitmo's prison and shutting it down. And Dixon said it's silly for the Justice Department to keep fighting legal cases by detainees when Biden says he wants to close Gitmo. And now that the legal argument for detaining them is on shakier ground as U.S. troops leave Afghanistan, Dixon says this could finally get Biden and the Justice Department on the same page.
KURTZLEBEN: That was Sacha Pfeiffer of NPR's investigations team. Thanks, Sacha.
PFEIFFER: You're welcome.
KURTZLEBEN: And we should add that in other Guantanamo news, the chief prosecutor of the accused September 11 terrorists announced his surprise resignation this week, making it increasingly unlikely that a 9/11 trial will ever be held and possibly laying more groundwork for the prison's eventual closure.
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