Active Hostilities and International Law Limits to Trump’s Executive Order on Guantanamo

In his State of the Union speech on January 30, 2018, U.S. President Donald Trump announced his signing of a new executive order aimed at keeping open the U.S. detention facility at Guantanamo Bay, Cuba, as well as approving its repopulation. This post considers how the law of war governing detention in armed conflicts constricts the ability of the U.S. to hold persons in military prisons at Guantanamo in the manner suggested by this new order.

Formally speaking, Trump’s executive order repeals a critical portion of President Obama’s 2009 order calling for the Guantanamo prison site to be closed “as soon as practicable, and no later than 1 year from the date of this order.” The 2018 order also provides that the U.S. may “transport additional detainees” to the facility “when lawful and necessary to protect the nation.”

On the one hand, this executive order simply makes explicit what has already been President Trump’s de facto Guantanamo policy since taking office. While the Obama Administration worked to reduce the Guantanamo population considerably, resettling 197 of the 242 detainees remaining at the facility, President Trump has resettled none — not even five detainees cleared for release by the Department of Defense prior to Trump’s taking office. On the other hand, the order reflects a radical shift in policy. It suggests not merely the President’s tolerance of what has become the U.S.’ policy of indefinite detention — as some detainees have by now remained at Guantanamo for more than 16 years without charge — but indeed his more extreme belief in the value of Guantanamo detention, including indefinite detention, as a tool to keep (in his words) “dangerous terrorists” off the “battlefield.” Furthermore, by opening the door to future detentions, the order departs considerably from U.S. policy for more than a decade, as even the Bush Administration engaged heavily in detainee resettlement and ultimately concluded that maintaining the Guantanamo site was against national interests.

Policy aside, Trump’s executive order raises a number of important legal questions about the lawfulness of U.S. detentions at Guantanamo, some of which had also been raised in U.S. federal court cases even just a couple of weeks before Trump’s announcement. These questions pertain to U.S. authority to detain persons in times of armed conflict as a matter of international law, as well as, relatedly, as a matter of U.S. law.

Trump’s executive order makes a number of references to international law. The opening line, for example, states that “[c]onsistent with long-standing law of war principles and applicable law, the United States may detain certain persons captured in connection with an armed conflict for the duration of the conflict.” Another line stipulates that the U.S.’ detention operations at Guantanamo are “conducted consistent with . . . international law.” But most importantly, the order invokes international law to articulate the particular “armed conflicts” in which persons captured in connection thereof purportedly might be detained — or continue to be detained, if already at the facility. According to Section 1(b), “the United States remains engaged in armed conflict with al Qa’ida, the Taliban, and associated forces, including with the Islamic State of Iraq and Syria.” Though stated in conclusory terms, these assertions do not necessarily align with the law of war.

For one, it is settled law that in international armed conflicts (IACs), states may detain prisoners of war only until the end of active hostilities (Third Geneva Convention, Article 118), and other persons only so long as their internment is necessary for security reasons, and no longer than the close of hostilities (Fourth Geneva Convention, Articles 42 & 132-133). This means that the detention of individuals picked up in relation to U.S. operations in Afghanistan cannot last forever. These detentions may last no longer than the presence of active fighting, a point that we return to below.

President Trump’s statements in favor of repopulating Guantanamo also seem to suggest the potential for an increase in the number of individuals detained in relation to non-international armed conflicts (NIAC) — perhaps individuals apprehended in the course of orchestrating ISIS activities, or in connection to other terrorist plots. While the law authorizing NIAC-based detentions is considerably less certain than the law governing IAC detentions, the bulk of authority seems to indicate that such detentions may also not last forever. Recent years have seen fierce debate over the question of whether the Geneva Conventions authorize and regulate detention in NIACs (as has been examined in prior posts, and in particular with regard to the Serdar Mohammed decision in the United Kingdom — see e.g. here and here). Nevertheless, Professor Ryan Goodman has convincingly argued with regard to U.S. detentions at Guantanamo that the authority to engage in particular detention practices under the Geneva Conventions in IACs a fortiori reaches NIACs, since states have accepted more stringent obligations in IACs. Though he leaves open the question of whether proscriptive rules constraining detention transfer from IACs to NIACs, he indicates that proscriptive rules constraining NIAC detention can also be found in other sources of international law. The ICRC maintains that Article 75 of Additional Protocol I — which provides that detainees must be informed of the reasons for their detention and released as soon as the circumstances justifying their detention cease to exist — reflects customary international law. (See The Relevance of IHL in the Context of Terrorism: 01-01-2011 FAQ, ICRC (Jan. 1, 2011)). Moreover, some commentators have specifically concluded that Article 75, or at least critical provisions of it, is applicable to NIACs as well as IACs. (See Knut Dörmann, Detention in Non-International Armed Conflicts, in Non-International Armed Conflict in the Twenty-First Century 347, 357 (Kenneth Watkin & Andrew J. Norris eds., 2012); Oona Hathaway et. al., The Power to Detain, 38 Yale J. Int’l L. 123, 157 (2013)). Knut Dörmann for instance has explained that various parts of Article 75(3) and (4) apply to NIACs as well as IACs. Likewise, Rule 128 of the ICRC Customary IHL Study states persons detained in NIACs “must be released as soon as the reasons for the deprivation of their liberty cease to exist.” Notably, the Obama Administration, which was not willing to accept that Article 75 was legally binding in NIACs, nevertheless took the position that its practices were consistent with Article 75. (See Oona Hathaway et. al., The Power to Detain, 38 Yale J. Int’l L. 123, 156-157 (2013)). Accepting this view, both NIAC- and IAC-based detentions must, at a maximum, come to a close at the end of active hostilities.

Another issue with Trump’s order comes via U.S. law, where these international law obligations have been understood to act as constraints on the Executive’s detention authority. Here it is again clear that the Executive’s authority must accord with IHL rules governing detention, including restrictions concerning “active hostilities.” Specifically, in the 2004 Supreme Court case Hamdi v. Rumsfeld, six Justices held that the Executive’s power to detain combatants in the War on Terror existed only so long as “active hostilities” remained ongoing in the relevant conflict. (Hamdi, p. 2639-44). Though the Court in that case addressed the nature of Mr. Hamdi’s detention as part of the U.S.’ IAC with Afghanistan, its pronouncements concerning the need to interpret the Executive’s authority under the AUMF in light of the “law of war” seem to equally support a restriction on detentions in NIACs to conditions of “active hostilities.” The plurality made explicit reference to the Third Geneva Convention of 1949 and enunciated its view that “[i]t is a clearly established principle of the law of war that detention may last no longer than active hostilities.” The Justices again pointed to the Third Geneva Convention in holding that “[p]risoners of war shall be released and repatriated without delay upon the cessation of active hostilities.” (Hamdi, p. 2641). They also appeared to rely on international law when interpreting “indefinite detention for the purpose of interrogation” as “[un]authorized” under the AUMF. (Hamdi, p. 2641; see also Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization and the War on Terrorism, 118 Harv. L. Rev. 2047, 2094 (2005)).

A key question under both domestic and international law in relation to Trump’s new order, then, is how “active hostilities” are to be determined. After all, a determination that hostilities have ceased, in the conflict connected to an individual’s detention, renders illegal that detention at both international and domestic law. Though not mentioned in the executive order itself, it appears that the Trump Administration maintains (or assumes) that the United States is currently engaged in “active hostilities” with all of the entities mentioned in the executive order. (See this letter from the President to Congress). These bald assertions, however, seem problematic from both the perspective of international and U.S. law.

First, as the ICRC has summarized, whether a non-international conflict continues to exist as a matter of international law “does not depend on the subjective judgment of the parties to the conflict” and “must be determined on the basis of objective criteria.” (Int’l Comm. of the Red Cross, Working Paper 8 (June 29, 1999)). Indeed according to the ICRC, the term “close of hostilities” in Article 133 of the Fourth Geneva Convention and the term “cessation of active hostilities” in Article 118 of the Third Geneva Convention refer to “a state of fact rather than the legal situation covered by laws or decrees fixing the date of cessation of hostilities.” (4 Int’l Comm. of the Red Cross, Commentary on the Geneva Conventions of 12 August 1949, Geneva Convention Relative to the Protection of Civilian Persons in Time of War 514-15 (Jean Pictet et al. eds., 1958)). Moreover, history suggests that during the drafting of the Fourth Geneva Convention, the U.S. delegate specifically advanced an interpretation of the term “active hostilities” as based on facts on the ground, and not on a Presidential proclamation or the final surrender of all relevant groups. (See Bettina Scholdan, “The End of Active Hostilities”: The Obligation to Release Conflict Internees Under International Law, 38 Houston J. Int’l L. 99, 160 (2016)).

Second, in the case of domestic legal challenges, U.S. federal courts, not the President, will ultimately the determinants of “active hostilities.” Several such challenges are already ongoing in relation to existing Guantanamo detentions on this point. The main support for this position comes from Hamdi again, where the plurality referenced international law extensively in interpreting the Executive’s authority under the AUMF. In doing so, the plurality was careful to note that the detention authority provided by the AUMF only exists “if the record establishes that United States troops are still involved in active combat in Afghanistan.” (542 U.S. 507, 521 (2004)). Consistent with this approach, U.S. courts have analyzed factual records on numerous occasions over the years to decide whether or not conflict exists, and whether or not hostilities are ongoing, in addition to considering statements of the political branches. (See Deborah Pearlstein, Law at the End of War, 99 Minn. L. Rev. 143, 151-69 (2014) (reviewing case law)).

As one recent example, the District Court of the District of Columbia in Al-Warafi v. Obama clarified that it would engage in an independent factual assessment in which the Executive’s opinion is considered but is by no mean dispositive. As that court noted: “By [the Government’s] logic, so long as he maintained that active hostilities were ongoing in Afghanistan, the President could preserve his AUMF detention power . . . . But . . . the President’s position, while relevant, is not the only evidence that matters.” (2015 U.S. Dist. LEXIS 99781 at *14 (D.D.C. 2015), order vacated, appeal dismissed (Mar. 4, 2016)). After rejecting the position that courts had to defer to the Executive’s viewpoint, the court explained that its “responsibility here is likewise to determine the existence or nonexistence of active hostilities using all relevant evidence.” Based on this precedent, Guantanamo detainee Moath Hamza Ahmed al-Alwi, who has been held at Guantanamo for more than 15 years, is presently contending before the D.C. Circuit that his detention is unlawful precisely because “active hostilities” have expired and the Executive lacks unilateral authority to determine the cessation of hostilities.

As such, executive pronouncements are not on their own determinative of whether a state is in state of “active hostilities.” Like the presence of an “armed conflict,” “active hostilities” is a legal state of affairs that under both international and U.S. law requires a factual determination — not simply a presidential decree. The Trump Administration would therefore be wrong to presume that its unilateral assessment of the conflict could suffice as authorization for new and ongoing indefinite detentions.

Such factual review of “active hostilities” is important as there may be room to question whether the U.S. is in a state of “active hostilities” in at least some of the conflicts mentioned in the order — particularly those in Afghanistan. At numerous points in 2014, for instance, President Obama officially declared that the combat mission in Afghanistan had reached its conclusion. See Official Statements here (“[O]ur combat mission in Afghanistan is ending, and the longest war in American history is coming to a responsible conclusion.”), here (“Together with our allies and the Afghan government, we have agreed that this is the year we will conclude our combat mission in Afghanistan.”), and here. In its December 2016 Report on the Legal and Policy Frameworks Guiding the United States’ Use of Military Force and Related National Security Operations, the Obama Administration discussed the AUMF authorization to use force against the Taliban, al-Qaeda, and associated groups in Afghanistan, as well as al-Qaeda in Syria and Libya. However, the Administration did not expressly characterize its actions against these groups as occuring within the context of armed conflicts. (See Dustin A. Lewis et. al. Indefinite War: Unsettled International Law on the End of Armed Conflict, Harv. L. Sch. Program on Int’l L. & Armed Conflict (HLS PILAC) (Feb. 2017), notes 368-74 (and sources cited therein)). Scholars such as Deborah Pearlstein and Bettina Scholdan have picked up on these uncertainties, questioning whether the U.S. is engaged in active hostilities with the Taliban in Afghanistan and emphasizing the critical distinction between U.S. military presence and actual “active hostilities” under international law.

Furthermore, President Trump’s past statements have envisaged use of the Guantanamo prison in manners in tension with the law of war. Notably, soon after the tragic October 31 truck attack in New York City, President Trump publicly explored the possibility of sending perpetrator Sayfullo Saipov to Guantanamo Bay, despite the fact that Saipov was never part of an ISIS armed group fighting in Iraq and Syria — and not part of an armed conflict in which the U.S. was engaged in “active hostilities.”

Ultimately, just how far the Trump Administration will take the order’s broadly-phrased authority to detain at Guantanamo whenever the Government deems it necessary to “protect the national interest” is yet to be seen. In any case, the executive order is another worrying sign that for this Administration, important restrictions provided by the law of war — guarding against the indefinite detention of persons in both NIACs and IACs — may take a backseat to impulsive policy.