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This Guantanamo Detainee Argued He Should Go Free Because The War Is Over — A Judge Disagreed

Moath al-Alwi — a detainee for more than 15 years — argued that he could no longer be held because the US combat mission in Afghanistan was over, citing statements by President Obama. A judge disagreed.

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WASHINGTON — President Obama's pronouncements in 2014 and 2015 that the US combat mission in Afghanistan was over didn't end the government's right to hold prisoners at the US military facility at Guantánamo Bay, Cuba, a federal judge ruled this week.

Moath al-Alwi has been held by the US government since late 2001, when Pakistani authorities turned him over on suspicion that he had ties to al-Qaeda and the Taliban. In his latest bid for freedom, his lawyers argued that the end of the US combat mission meant he could no longer be lawfully detained as an enemy combatant.

US District Judge Richard Leon ruled late Wednesday that regardless of Obama's statements, he would defer to the determination of the executive branch that the US was still engaged in "active hostilities" against al-Qaeda, the Taliban, and their affiliates.

"Although the President announced a change in the military's focus going forward, he made clear that the United states would continue to engage in active counterterrorism operations in Afghanistan," Leon wrote.

One of al-Alwi's attorney's, City University of New York School of Law professor Ramzi Kassem, told BuzzFeed News in an email that they will appeal Leon's decision.

“Moath al-Alwi has been in U.S. custody for over 15 years. Neither the law of war nor any other set of laws in a civilized society should be read to permit arbitrary or lifetime imprisonment without a fair trial. We will appeal this decision because a higher court must check the President’s assertion that he can continue to imprison Mr. al-Alwi and others at will," Kassem said. He is representing al-Alwi through the Immigrant & Non-Citizen Rights Clinic, along with other volunteer lawyers.

Leon, who heard arguments in December, is now the fourth federal judge in the US District Court for the District of Columbia to reject arguments similar to those raised by Al-Alwi's lawyers. The US Court of Appeals for the DC Circuit, which sets precedent for the district court, has yet to consider the issue because the detainees who brought earlier cases were transferred out before they could pursue an appeal.

Al-Alwi is one of 41 detainees still held at Guantánamo Bay. The Defense Department last transferred out a group of detainees on Jan. 19. President Trump has expressed opposition to releasing detainees, tweeting on Jan. 3:

There should be no further releases from Gitmo. These are extremely dangerous people and should not be allowed back onto the battlefield.

Al-Alwi had also argued that even if there were still hostilities, his 15-year detention ran afoul of the principles of war, pointing to an earlier US Supreme Court decision — Hamdi v. Rumsfled, in 2004 — that warned against indefinite detention. Leon wrote that given the current military operations in Afghanistan, Al-Alwi's detention was permissible.

"After all, 8,400 United States service members are currently stationed in Afghanistan and engage in the use of force, against al Qaeda, Taliban, and associated forces, consistent with the laws of war and in a context similar to that presented to the Supreme Court in Hamdi," Leon wrote. "To say the least, the duration of a conflict does not somehow excuse it from longstanding law of war principles."

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UPDATE

This story was updated with comments from Ramzi Kassem.


Zoe Tillman is a legal reporter with BuzzFeed News and is based in Washington, DC.

Contact Zoe Tillman at zoe.tillman@buzzfeed.com.

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