The War in Afghanistan is Over, says the President. Not, Says the Justice Department

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The War in Afghanistan is Over, says the President. Not, Says the Justice Department

(U.S. Air Force photo by Tech. Sgt. Kevin Wallace/cc/flickr)

Yesterday, President Barack Obama delivered remarks before a Memorial Day service at Arlington Cemetery in Virginia, in which he celebrated the day as the first Memorial Day since the end of the war in Afghanistan.

For many of us, this Memorial Day is especially meaningful; it is the first since our war in Afghanistan came to an end. Today is the first Memorial Day in 14 years that the United States is not engaged in a major ground war. So on this day, we honor the sacrifice of the thousands of American servicemembers—men and women—who gave their lives since 9/11, including more than 2,200 American patriots who made the ultimate sacrifice in Afghanistan.

Our war in Afghanistan came to an end. Well, sort of.

The United States and NATO did formally end the war in Afghanistan, amidst some ceremony, in December 2014. However, in many ways, it is hard to see that the changing of the guard was little more than the changing of a flag. And President Obama’s own Justice Department—for its part—is busily arguing in court that the war is not, in fact, over.

In the United States’ opposition to a Guantanamo Bay detainee’s “End of War” motion, the President’s lawyers write, “active hostilities” are continuing against the Taliban in Afghanistan, and that the President and the Congress are “in agreement” that this is the case:

As a matter of international and domestic law, the United States currently remains in an armed conflict with al-Qaeda, Taliban, and associated forces. Petitioner Mukhtar Yahia al Warafi (ISN 117), a Guantanamo Bay detainee previously determined by this Court to be part of Taliban forces, incorrectly contends that his detention at Guantanamo Bay has become unlawful because he alleges the United States’ armed conflict against the Taliban in Afghanistan ended at the close of 2014.

. . .

[T]he determination of whether hostilities have ended is a matter “of political judgement for which judges have neither technical competence nor official responsibility.” Ludecke v. Watkins, 335 U.S. 160, 170 (1948). With respect to the current armed conflict against al-Qaeda, Taliban, and associated forces, both political branches are in agreement, through Congress’s continued statutory authority and the Executive’s posture and military actions undertaken pursuant to that authority, that active hostilities against those forces have not ceased.

. . .

Petitioner . . . misunderstands the meaning of the President’s public statements in December 2014 announcing that “[t]his month, our combat mission” and “America’s war in Afghanistan will come to a responsible end.” The President has not declared that active hostilities against al-Qaeda, Taliban, and associated forces have ceased or that the fighting in Afghanistan has stopped. Rather, the President’s public statements made clear that, in light of continuing threats faced by the United States in Afghanistan, counterterrorism and other military operations would continue even after the end of the combat mission. Simply put, the President’s statements signify a transition in United States military operation, not a cessation.

Oh.

In effect, the Justice Department is arguing that the President does not quite mean what he says when he says the war was over. What he means is that “military operations” will continue after the “combat mission” is over.

The war is over. Long live the war.

The Justice Department is not the only agency making this argument. In an April speech, Department of Defense General Counsel Stephen Preston clarified the point further, stating “Although our presence in that country [Afghanistan] has been reduced and our mission there is more limited, the fact is that active hostilities continue. As a matter of international law, the United States remains in a state of armed conflict against the Taliban, al-Qa’ida and associated forces, and the 2001 AUMF continues to stand as statutory authority to use military force.”

And in many ways, the Justice Department and the Defense Department are more right than the President. The war continues for the Afghans, the war continues for the Taliban, and for many Americans, the war also continues. Fierce fighting in the country has killed record numbers of Afghan security forces over the last year. In March, the United States agreed to slow the withdraw of U.S. troops from the country.

Before that, in February, the New York Times reported that the United States was escalating a secret war in Afghanistan. Airstrikes continue aplenty; night raids throughout the the country have reached a fever pitch.”It’s all in the shadows now,” One Afghan security official told the Times. “The official war for the Americans—the part of the war that you could go see—that’s over. It’s only the secret war that’s still going. But it’s going hard.”

That was confirmed by another Times report from the end of April. In March alone, the United States launched 52 airstrikes:

Rather than ending the American war in Afghanistan, the military is using its wide latitude to instead transform it into a continuing campaign of airstrikes—mostly drone missions—and Special Operations raids that have in practice stretched or broken the parameters publicly described by the White House.

How do we square the circle of the war’s being over except that it isn’t? Perhaps, the clearest summation of the situation came from the commander expanding the secret war, General John F. Campbell in a New York Times story:

“Washington is going to have to say what they say politically for many different audiences, and I have no issue with that,” General Campbell said. “I understand my authorities and what I have to do with Afghanistan’s forces and my forces. And if that doesn’t sell good for a media piece then, again, I can’t worry about it.”

He added: “Combat and war and transition, as you know, it’s a very complex thing. For me, it’s not black and white.”

Recognizing that final point, the very transitional nature of modern day warfare, yesterday the President acknowledged that “the nature of war has changed.” Instead, it is only the “the values that drive our brave men and women in uniform [that] remain constant:  Honor, courage, selflessness.”

Benjamin Wittes

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books and a member of the Hoover Institution's Task Force on National Security and Law.

Cody Poplin

Cody Poplin is a research assistant at the Brookings Institution where he focuses on national security law and policy. He graduated from the University of North Carolina at Chapel Hill with majors in political science and peace, war, and defense in 2012. He is both a former Henry Luce Scholar and a former Herbert Scoville, Jr. Fellow.

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