In his state of the union address Jan. 28, President Obama said that when it comes to fighting terrorism, “America must move off a permanent war footing.” In 2013 he took steps to wind the war down, cutting drone strikes and drafting a replacement to Congress’s broad authorization for the conflict. But just as waging the war has been messy, ending it is too.
Consider the case of Sabir Ali Khan. In 2010, al-Qaeda and Taliban attacks killed 39 Americans in Afghanistan’s Kunar province, and Khan was one of the conspirators, according to U.S. court documents. He had smuggled mortars across the border from Pakistan and helped organize a suicide attack on a U.S. base in Kunar, the documents allege. He then returned to his wife and child in Pakistan.
Today, Khan, 27, is free and living in the Netherlands while he fights extradition to New York City, where he is wanted on five counts, including conspiracy to commit murder and support for al-Qaeda. He may never see the U.S. “Officially I have no restrictions on me,” Khan tells TIME. Divorced and unemployed, he lives in the Hague with his father, collecting €700 a month in welfare and spending his days playing Call of Duty or hanging out with his girlfriend. Having Khan walking free may be a price the U.S. has to accept as it tries to end the war on terror.
In the predawn darkness of Sept. 23, 2010, a group of black SUVs pulled up to Khan’s house in Peshawar, Pakistan. Armed men emerged, kicked in his front door and arrested him. A decade ago, the next stop for Khan might have been Guantánamo Bay or a U.S. military prison outside Kabul. But no prisoners have been sent to Guantánamo since March 2008, and the U.S. has handed over the Kabul prison to the Afghans. On Obama’s orders, the U.S. military is getting out of the business of detaining terrorists.
That means when U.S. authorities find a suspected terrorist, they have three options: kill him, leave him in the field or work with the local government to detain him and perhaps eventually bring him into the U.S. court system. “In the vast majority of cases, we’re going to rely on partners to detain them,” says Michael Leiter, head of the U.S. National Counterterrorism Center from 2007 to 2011. For eight months after his arrest, Khan was held at two secret facilities in Pakistan, where he says he was interrogated by Pakistani officials and tortured through beatings, sleep deprivation and stress positions. He claims that Americans were present nearby, though he never saw them himself.
Khan is a Dutch citizen, so the Pakistanis eventually released him to Dutch consular officials, who flew him to the Netherlands, which has an extradition treaty with the U.S. He was arrested when he landed in Amsterdam in April 2011, but at Khan’s extradition hearing, his lawyer argued that the U.S. was complicit in Khan’s torture. The Dutch court told the government to ask the U.S. if it was behind Khan’s arrest and interrogation, but the government declined to do so.
The Obama Administration won’t comment on Khan’s allegations. Former CIA chief Michael Hayden says U.S. officials must insist on humane treatment of prisoners when they collaborate with other countries, “but nothing in life is certain.” The Dutch Supreme Court is expected to rule on Khan’s extradition in March.
In the meantime, Khan claims his house is watched and his phones are tapped. He is a big fan of National Security Agency leaker Edward Snowden, who he says has turned Europeans against America. “He helped me a lot,” he says. Indeed, not long ago someone in Khan’s position would not have spoken openly to the media. Khan declines to comment on the actual charges in the sealed U.S. indictment, a Dutch translation of which was obtained by TIME.
As he tries to undo the most extreme post-9/11 powers, Obama argues that U.S. civilian courts have a much better track record of producing justice in terrorism cases than military courts. Military detention, he says, alienates our allies and gives a propaganda tool to our enemies.
But abandoning military detention also means leaving the job to others. That may mean freedom for suspects in a country like the Netherlands or abuse in a country like Pakistan. European courts have delayed or denied extradition of terrorism suspects to the U.S. in nearly a dozen cases in recent years on human-rights grounds. With the U.S. seeking to detain hundreds of suspected terrorists around the world, there will be more such cases. “We are running too fast from law-of-war detention while the war is ongoing,” says William Lietzau, the Pentagon’s head of detainee policy from 2010 to 2013.
For his part, Khan believes America’s shift to the courts shows that its enemies, himself included, “have become stronger than ever.” That is difficult to gauge. The harder question is whether it has made America safer.
This appears in the February 10, 2014 issue of TIME.