Biden Admits to Supreme Court: The ‘Forever War’ Is Not Over, After All

It appears to have struck Justice Kavanaugh as strange that President Biden is claiming that the war is over while doing things that are legal only if the war is still going on.

T o the extent President Biden’s pull-out from Afghanistan was not criminally negligent, it was pervasively mendacious.

There was the president’s lamebrained targeting of September 11 as the withdrawal deadline — a strategic and propaganda boon for the Taliban. There was the stunningly backward plan to draw down forces before evacuating civilians and diplomats, which led to the mind-blowing Bagram bug-out. Thus the domino effect of U.S. mistakes: our inability to evacuate from a fortified, well-equipped airport, instead shifting operations to the impractical Kabul airport; our removal of the technical support (especially air support) that the Afghan forces needed; the Taliban rout of remaining Afghan provinces; and the jihadists’ inheritance of tens of billions of dollars in American weaponry (which is now at the disposal of terrorists who have designs on attacking Americans). The Taliban took the capital without firing a shot, placing the Haqqani network — notorious jihadists formally designated by the U.S. as an al-Qaeda aligned terrorist organization — in charge of security in the city.

You know what happened next. With the environment converted into a jihadist’s dream, ISIS bombings killed 13 American military personnel (the most we’d lost in years). In the aftermath, Biden’s desperation to be seen as doing something about the lethal mess he’d made resulted in a rash “retaliation” strike that managed to slaughter not terrorists but ten civilians, including a mistakenly targeted humanitarian aid worker and seven children.

In the chaotic air lift, Biden tried to run up the numbers of Afghans evacuated in order to change the subject from the Americans and pro-American Afghans he has left behind. The result is that tens of thousands of insufficiently vetted denizens of an anti-Western, sharia-supremacist culture will be resettled in the United States (investigations are already under way for child-sex and spousal-abuse offenses by some of the “refugees,” as well as the sexual assault of a female U.S. soldier by a group of Afghan men at a military complex in New Mexico).

By contrast, and to our nation’s enduring shame (as Jim Geraghty steadfastly continues to report), Biden left to the tender mercies of the jihadists scores of American citizens, untold thousands of green-card holders, and tens of thousands of pro-American Afghans who actually qualified for resettlement in our country by assisting our forces at great peril — as reports increasingly indicate, mortal peril — to themselves.

And now the administration has quietly acknowledged that, in effect, all of the disgrace and dishonesty have been in the service of a big lie — namely, that Biden has ended the “forever war.” He hasn’t . . . though he’s hoping you won’t notice.

Ah, but Justice Brett Kavanaugh noticed.

Having tested positive for COVID (though he is vaccinated and symptom-free), Justice Kavanaugh was the only one of his colleagues to miss the resumption of in-person oral arguments as the Supreme Court opened its new term this week. But despite having to participate remotely by phone, Kavanaugh made a big impact, even if sparse press coverage failed to highlight it.

Turns out that, for the first time in years, the War on Terror — again, the so-called forever war — was back on the Court’s docket. The case involves 9/11 terrorist Abu Zubaydah, a top aide to Osama bin Laden, who is trying to force the U.S. government to reveal classified information to Polish prosecutors about a CIA “black site” at which he was subjected to waterboarding and other forms of enhanced interrogation. (I’ll discuss the case in a separate post in the coming days.)

Near the end of the session, it finally came Kavanaugh’s turn to pose questions. With the president telling the country that he and he alone had the courage no other president has had to end the forever war after 20 years, the justice decided to change the subject. By what authority, Kavanaugh wondered, was the Biden administration continuing to detain enemy combatants without trial?

It is not an idle question. Rich Lowry and I have been raising it on our NR podcast. Under the laws of war, captured enemy combatants may be held without trial until the conclusion of hostilities. The operating principle is that the detention is not meant to be punitive; it is intended to authorize depleting the resources of the warring parties, theoretically bringing the war to an end more rapidly. Once the war is over, though, the combatants may no longer be detained; they must be charged with crimes and put on trial, or else released.

In fact, the United States is still holding over two dozen terrorist detainees at Guantanamo Bay. There is no prospect of trying these jihadists in a military or civilian court. The evidence against them comes from top-secret intelligence that cannot be exposed in court without harming our national defense (and that might not be admissible anyway).

As a practical political matter, however, Biden cannot afford to release them. It has already blown up on him that Taliban detainees that the Obama-Biden administration released (in a swap for deserter Bowe Bergdahl) have ended up in high-level posts in the new Afghan regime that supplanted the government we’d spent years propping up. Moreover, it has emerged that, by ceding Kabul to the Taliban and allowing them to empty the prisons, the Biden pullout led to the release from detention at Bagram of the ISIS terrorist who then proceeded to carry out the suicide bombing that killed 13 of our service members. The remaining Gitmo detainees are still being held because it is a certainty that they would otherwise return to the very-much-not-over forever war and plot to mass-murder Americans. That is not a risk even the bungling Biden is willing to run at this moment, with his presidency reeling and his poll numbers tanking.

But of course, the administration would rather not say that out loud. The storyline for Biden officials is that, for all the downsides, what people will remember is that he ended an unpopular war.

Except he didn’t. And Kavanaugh forced the administration to say so.

At Tuesday’s Zubaydah argument, the justice put the question bluntly to Biden’s acting solicitor, Brian Fletcher: “Is the United States still engaged in hostilities for purposes of the AUMF against al-Qaeda and related terrorist organizations?” The AUMF (Authorization for Use of Military Force) is the 2001 congressional resolution that served as the basis for the war in Afghanistan and for continuing U.S. military operations and detention of enemy combatants.

Yes, Fletcher conceded, “that is the government’s position.” And it is the position the Biden administration holds, he elaborated, “notwithstanding withdrawal of troops from Afghanistan.” Whatever the White House may say about the end of the forever war, the Justice Department has represented to the Supreme Court that “we continue to be engaged in hostilities with al-Qaeda and therefore that detention under law of war remains proper.”

A couple of interesting points. In his prior life, the young Brett Kavanaugh, after clerking at the Supreme Court, was an associate White House counsel and, significantly, the staff secretary for President George W. Bush. He was enmeshed in the administration’s strategy as it shifted America’s national-security posture from treating terrorism as a law-enforcement matter in the Clinton era to addressing it under the laws of war — the corpus that allows indefinite detention of enemy combatants. It has no doubt struck Justice Kavanaugh as strange for President Biden to be claiming that the war is over while doing things that are legal only if the war is still going on.

Second, it was only a few weeks ago that Biden made Kavanaugh appear foolish for trusting the administration. The justice knew that the president’s eviction moratorium was lawless, but since it was set to expire in a few weeks, he agreed to look the other way — provided, Kavanaugh stressed, that the administration get a clear congressional authorization before any further extensions. Biden being Biden, he pocketed that indulgence and then unilaterally extended the moratorium without seeking the congressional green light he knew would be denied. Kavanaugh and the Court looked like saps, and the Court speedily invalidated Biden’s gambit.

Supreme Court justices do not like to look like saps.

So just to be clear, President Biden has not ended the war, nor could he have given that the jihadist enemy has not been defeated and continues to target the United States and American interests worldwide. What Biden has done is restore to our terrorist enemies what they needed to carry out the 9/11 attacks that killed nearly 3,000 of our fellow Americans: an operational partnership with an anti-American sharia-supremacist regime in Afghanistan that gives them safe haven to recruit, train, and plan.