Judge Andrew Napolitano weighed in on "Fox and Friends" today about two Guantanamo Bay inmates using a White House memo to demand freedom. 

"Our combat mission in Afghanistan is ending, and the longest war in American history is coming to a responsible conclusion," President Barack Obama said in a December 2014 statement.

Lawyers for Faez Mohammed Ahmed al-Kandari and Muktar Yahya Najee al-Warafi argue that Obama's declaration makes the imprisonment of their clients "unlawful" since the conflict is over in Afghanistan.

The Supreme Court has held the government may hold prisoners captured during a war for only as long as the war in that country continues, Napolitano explained.  

"If they are uncharged and untried and there's no hostility, you have no legal authority to keep them," Napolitano stated. 

He noted that the 2001 Authorization for Use of Military Force is the legal justification for the imprisonment of foreign fighters who were captured on overseas battlefields. 

Napolitano said the Justice Department "is probably conflicted between their understanding of the law and their fidelity to the politics of the president." 

"It's a fascinating argument. I don't think they're going to be set free but I do think it's going to produce a lot of litigation," Napolitano remarked. 

Watch the video above. 


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