War without end

Six weeks after 9/11, U.S. officials were discussing with the UK the theory that, while a war was on, they could detain people indefinitely without trial -- and that "the plausibility of the argument that the war was continuing" was key to making this work:

Also among the released documents is a letter to London from the British embassy in Washington, dated 24 October, which reflects a growing realisation that the US was considering detaining people captured in Afghanistan for very long periods, and an understanding that it would be difficult to defend this as lawful.

Heavily censored, the letter shows that within weeks of the 9/11 attacks, the US and UK governments saw that the longer they could claim they were still waging a form of war, the longer they might be able to detain individuals without trial. They were aware the argument would wear thin if hostilities should appear to be over.

The author of the letter – whose identity has been redacted – writes: “As long as the war against terrorism in the widest sense continued, the US/UK would have rights to continue to detain those they had been fighting against (even if the fighting in Afghanistan itself were over). [Redacted] conceded that the strength of such a case would depend on the plausibility of the argument that the war was continuing.”

Via Emptywheel, who probably knows the documentary evidence like no one else, and who doesn't recall seeing this letter.

The lede in the article is that the UK was on notice as early as January 2002 that America was using torture, but I agree with Emptywheel that the early focus on perpetual warfare is the sleeper here.