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When Has the War in Afghanistan “Ended”?

“A federal judge on Thursday rejected a legal challenge from a Guantanamo Bay detainee who said his imprisonment was unlawful now that President Barack Obama has declared an end to hostilities in Afghanistan,” ABC News reports.  

“Muktar Yahya Najee al-Warafi, a Yemeni who was captured in Afghanistan, has been held since 2002 at the detention facility in Cuba for terror detainees. Judges have upheld his detention on grounds that he likely aided Taliban forces, though his lawyers have contended that he was simply a medic. His latest challenge centered on Obama administration statements made in the last year indicating that the war in Afghanistan had come to an end, including a January 2015 declaration that ‘our combat mission in Afghanistan is over.”  

“His lawyers said that those assertions made al-Warafi’s detention unlawful under the Authorization for the Use of Military Force of 2001, which provided the legal justification for the imprisonment of foreign fighters captured on overseas battlefields.”  

Jennifer Daskal  takes issue with the ruling: ” Judge Lamberth says that detention is authorized under the 2001 Authorization to Use Military Force so long as ‘fighting continue[s].’ And there is clearly at least some ongoing fighting between the U.S. and Taliban. But armed conflict requires a lot more than just mere fighting; the fighting need be of sufficient intensity and intensity to qualify.   Presumably Judge Lamberth believes that detention under the AUMF is authorized under something less? But based on what, and why? The opinion does not explain.”

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