March 30, 2015 VIA FEDEX Barack H. Obama President of the United States The White House 1600 Pennsylvania Avenue Washington, D.C. 20500 General Martin E. Dempsey Chairman, Joint Chiefs of Staff 9999 Joint Staff Pentagon Washington, D.C. 20318-9999 Ashton B. Carter Secretary of Defense U.S. Department of Defense 1400 Defense Pentagon Washington, D.C. 20301-1400 Eric H. Holder, Jr. Attorney General of the United States U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, D.C. 20530-0001 John F. Kerry Secretary of State U.S. Department of State 2201 C Street, NW Washington, D.C. 20520 Re: The United States Has No Authority to Continue to Detain Citizens of Afghanistan at Guantanamo Bay Dear Sirs: On January 20, 2015, President Obama declared to Congress and the country that the war in Afghanistan had ended: “Tonight, for the first time since 9/11, our combat mission in Afghanistan is over.”1 For the reasons set forth below, President Obama’s declaration requires the release of our clients being held at Guantanamo Bay. We, the undersigned counsel, collectively represent the following Afghan detainees: Haji Hamdullah, ISN 1119; Mohammed Kamin, ISN 1045; Bostan Karim, ISN 975; Obaidullah, ISN 762; Abdul Zahir, ISN 753. Their continued detention is illegal because the hostilities in Afghanistan, the only possible justification for detention, have ended. Therefore, these individuals should be released and repatriated or resettled immediately. 1 President Barack Obama, State of the Union Address (Jan. 20, 2015), available at http://www.whitehouse.gov/the-press-office/2015/01/20/remarks-president-state-union-addressjanuary-20-2015 (last visited March 22, 2015). 1 I. The War in Afghanistan Is Over and Therefore Afghan Citizens Must Be Released. The government’s authority to detain our clients is based on the Authorization for the Use of Military Force (“AUMF”), passed by Congress and signed into law in the week following the attacks of September 11, 2001. See Authorization for the Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001); Hamdi v. Rumsfeld, 542 U.S. 507, 519 (2004) (plurality opinion of O’Connor, J.); id. at 588-89 (Thomas, J., dissenting). The government’s authority to detain is not indefinite. Indeed, it lasts only as long as the war in Afghanistan exists. “It is a clearly established principle of the law of war that detention may last no longer than active hostilities.” See Hamdi, 542 U.S. at 521 (plurality opinion of O’Connor, J.). Over the last decade, the federal judiciary has acknowledged that the government’s authority to detain individuals at Guantanamo Bay will end eventually. See, e.g., id. (“[W]e understand Congress’ grant of authority for the use of ‘necessary and appropriate force’ to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles.”); Aamer v. Obama, 742 F.3d 1023, 1041 (D.C. Cir. 2014) (“This court has repeatedly held that . . . individuals may be detained at Guantanamo so long as they are determined to have been part of Al Qaeda, the Taliban, or associated forces, and so long as hostilities are ongoing.”); Awad v. Obama, 608 F.3d 1, 11 (D.C. Cir. 2010) (“[T]he United States’ authority to detain an enemy combatant is not dependent on whether an individual would pose a threat to the United States or its allies if released but rather upon the continuation of hostilities.”). As stated above, President Obama declared that the war was over in his 2015 State of the Union address. Earlier, on December 28, 2014, President Obama marked the end of Operation Enduring Freedom and combat operations in Afghanistan at a flag ceremony in Kabul, noting that “thanks to the extraordinary sacrifices of our men and women in uniform, our combat mission in Afghanistan is ending, and the longest war in American history is coming to a responsible conclusion.”2 At that same ceremony, former Secretary of Defense Chuck Hagel further acknowledged the end of combat operations by American forces and the transfer of security authority to the government of Afghanistan: “At the end of this year, as our Afghan partners assume responsibility for the security of their country, the United States officially concludes Operation Enduring Freedom. Our combat mission in Afghanistan, which began in the aftermath of the September 11, 2011 attacks, will come to an end.” 3 President Obama and 2 Press Release, Statement by the President on the End of the Combat Mission in Afghanistan (Dec. 28, 2014), available at http://www.whitehouse.gov/the-press-office/2014/12/28/statementpresident-end-combat-mission-afghanistan (last visited March 22, 2015). 3 Statement by Secretary of Defense Chuck Hagel on Operation Enduring Freedom and Operation Freedom’s Sentinel, Release No: NR 631-14, December 28, 2014, available at http://www.defense.gov/Releases/Release.aspx?ReleaseID=17091 (last visited March 22, 2015). 2 other national security officials have maintained this position in subsequent public remarks.4 Their statements are supported by concrete steps taken by American military forces, including the significant reduction of troops stationed in Afghanistan, the transfer of control over detention facilities housing Afghan detainees at Bagram Airfield to the Afghan government, and the transfer of security control of 95 Afghan districts to the Afghan government. The Supreme Court has held that “‘[t]he state of war’ may be terminated by treaty or legislation or Presidential proclamation. Whatever the modes, its termination is a political act.” See Ludecke v. Watkins, 335 U.S. 160, 168-69 (1948). This political determination is part and parcel of the war powers entrusted to the President by Congress. See id. at 173 (“Accordingly, we hold that full responsibility for the just exercise of this great power may validly be left where Congress has constitutionally placed it—on the President of the United States.”). President Obama’s statements, Supreme Court precedent and the American military’s actions make clear: the war in Afghanistan is over. Therefore, the basis for the continued detention of Afghan citizens at Guantanamo Bay has disappeared. Moreover, the Afghan government has requested on multiple occasions that its citizens detained in Guantanamo Bay be released. On December 22, 2014, the United States released four Afghan detainees from Guantanamo Bay and returned them to Afghanistan. Additionally, the United States has released hundreds of Afghan detainees being held at Bagram Airbase in Kabul and the Afghan government has successfully overseen their return to civilian life. Accordingly, any concern that the release of our clients will result in their recruitment to and engagement in belligerent and militant actions against American forces is wholly unfounded. Our clients are not charged with any crime. Their detention is not penal in nature. Instead, they are being held captive subject to a military action that has concluded. “Captivity is neither a punishment nor an act of vengeance . . . . A prisoner of war is no convict. . . . He is 4 “After more than 13 years, our combat mission in Afghanistan is over, and America’s longest war has come to a responsible and honorable end.” Remarks by the President at Farewell Tribute in Honor of Secretary of Defense Chuck Hagel, January 28, 2015, available at http://www.whitehouse.gov/the-press-office/2015/01/28/remarks-president-farewell-tributehonor-secretary-defense-chuck-hagel (last visited March 22, 2015). “We’ve brought home almost 170,000 American troops, responsibly ending two long and costly ground wars and repurposing our military strength so we can better respond to emerging threats and crises.” Remarks by National Security Advisor Susan Rice on 2015 National Security Strategy, February 6, 2015, available at http://www.whitehouse.gov/the-press-office/2015/02/06/remarks-nationalsecurity-advisor-susan-rice-2015-national-security-stra (last visited March 22, 2015). “In Afghanistan, we have ended our combat mission and transitioned to a dramatically smaller force focused on the goal of a sovereign and stable partner in Afghanistan that is not a safe haven for international terrorists.” 2015 National Security Strategy, p. 9, available at http://www.whitehouse.gov/sites/default/files/docs/2015_national_security_strategy_2.pdf (last visited March 22, 2015). 3 disarmed and from then on must be removed as completely as practicable from the front, treated humanely and in time exchanged, repatriated or otherwise released.” Hamdi, 542 U.S. at 518 (quoting In re Territo, 156 F.2d 142, 145 (9th Cir. 1946); W. Winthrop, Military Law and Precedents 788 (rev. 2d ed. 1920)) (plurality opinion of O’Connor, J.). In the case of these five Afghan detainees, the time has come for their release. II. Detention Authority Under The AUMF Is Informed By Law-Of-War Principles Codified in The Geneva Conventions, Which Further Require The Immediate Release of Our Clients. The Department of Justice has acknowledged in its legal filings that the AUMF is informed by law-of-war principles, which impose certain obligations on the United States. See Respondents’ Memorandum Regarding the Government’s Detention Authority Relative to Detainees Held at Guantanamo Bay at 1, In re Guantanamo Bay Detainee Litigation, Misc. No. 08-442 (TFH) (D.D.C. March 13, 2009), ECF No. 1689. 5 The Supreme Court also recognizes that detention authority under the AUMF is founded in law-of-war principles. See Hamdi, 542 U.S. at 521 (“[W]e understand Congress’ grant of authority for the use of ‘necessary and appropriate force’ to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles.”). Consequently, the law-ofwar principles embedded in the Geneva Conventions of 1949, to which the United States is a signatory, apply to our clients’ detention and further require their release and repatriation or resettlement. The Commentary to Article 4 of the Fourth Convention makes clear that every person detained by a party to an armed conflict carries some status recognizable under international law: Every person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third Convention, a civilian covered by the Fourth Convention, or again, a member of the medical personnel of the armed forces who is covered by the First Convention. There is no 5 “Through this submission, the Government is refining its position with respect to its authority to detain those persons who are now being held at Guantanamo Bay. The United States bases its detention authority as to such persons on the Authorization for the Use of Military Force (“AUMF”), Pub. L. 107-40, 115 Stat. 224 (2001). The detention authority conferred by the AUMF is necessarily informed by principles of the laws of war. Hamdi v. Rumsfeld, 542 U.S. 507, 521 (2004) (plurality). The laws of war include a series of prohibitions and obligations, which have developed over time and have periodically been codified in treaties such as the Geneva Conventions or become customary international law. See, e.g., Hamdan v. Rumsfeld, 548 U.S. 557, 603-04 (2006). . . . Principles derived from law-of-war rules governing international armed conflicts, therefore, must inform the interpretation of the detention authority Congress has authorized for the current armed conflict.” 4 intermediate status; nobody in enemy hands can be outside the law. (Emphasis in original.) Regardless of which status applies to a particular detainee, the Geneva Conventions mandate that all detainees must be released upon the conclusion of the armed conflict that justifies their detention.6 Therefore, the conclusion of the war in Afghanistan triggered the United States’ obligation to release our clients as soon as possible. Conclusion In sum, we request that you take immediate action to release these five Afghan detainees. They have been detained without charge for over thirteen years. They have lived the last several years in isolation without any real hope that their detention will come to an end. The moral and legal deadline for their release passed long ago. Sincerely, /s/ Joseph K. Hetrick /s/ Derek A. Poteet Stephen D. Brown Joseph K. Hetrick Sheku Sheikholeslami Katherine M. Wyman Edward W. Dunn Dechert LLP 2929 Arch Street Philadelphia, PA 19104-2808 T: (215) 994-4000 F: (215) 994-2222 Major Derek A. Poteet, U.S. Marine Corps7 Captain S. Derek Shugert, JA, U.S. Army Defense Counsel Office of the Chief Defense Counsel 1620 Defense Pentagon Washington, D.C. 20301 T: (703) 696-9180 F: (703) 588-0003 Military Counsel for Obaidullah, ISN 762 Counsel for Haji Hamdullah, ISN 1119 6 “Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities.” Convention Relative to the Treatment of Prisoners of War art. 118, Aug. 12, 1949, 6.3 U.S.T. 3316, 75 U.N.T.S. 135. “Persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased.” Convention Relative to the Protection of Civilian Persons in Time of War art. 49, Aug. 12, 1949, 6.3 U.S.T. 3516, 75 U.N.T.S. 287. 7 The military defense attorneys represent an individual client and do not represent an official position of the Department of the Navy, Department of the Army, Department of Defense, or the United States Government. 5 /s/ Cindy Panuco /s/ Anne Richardson Cindy Panuco, Esq. Hadsell Stormer & Renick LLP 128 N. Fair Oaks Avenue Pasadena, CA 91103 T: (626) 585-9600 F: (626) 577-7079 Anne Richardson, Esq. Associate Director Opportunity Under Law Public Counsel 610 S. Ardmore Avenue Los Angeles, CA 90005 T: (213) 385-2977 F: (213) 385-9089 Counsel for Obaidullah, ISN 762 Counsel for Obaidullah, ISN 762 /s/ Ranjana Natarajan /s/ Paul M. Rashkind Ranjana Natarajan Clinical Professor Director, Civil Rights Clinic University of Texas Law School 727 E. Dean Keeton Street Austin, TX 78705 T: (512) 232-7222 Paul M. Rashkind Supervisory Federal Public Defender Southern District of Florida 150 West Flagler Street, Suite 1500 Miami, FL 33130-1565 T: (305) 536-6900 F: (305) 530-7120 Counsel for Obaidullah, ISN 762 Counsel for Bostan Karim, ISN 975 Mohammed Kamin, ISN 1045 /s/ Robert A. Gensburg /s/ David C. Sleigh Robert A. Gensburg P.O. Box 248 Saint Johnsbury, VT 05819 T: (802) 748-5338 David C. Sleigh P.O. Box 278 Saint Johnsbury, VT 05819 T: (802) 748-5716 Counsel for Abdul Zahir, ISN 753 Counsel for Abdul Zahir, ISN 753 6