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8.14.3 Release When the Circumstances Justifying Detention Have Ceased to Exist.Except in cases of arrest or detention for penal offenses, such persons shall be released with theminimum delay possible and in any event as soon as the circumstances justifying the arrest,detention, or internment have ceased to exist. 1008.14.3.1 Participants in Hostilities or Persons Belonging to Armed Groups ThatAre Engaged in Hostilities. For persons who have participated in hostilities or belong to armedgroups that are engaged in hostilities, the circumstance that justifies their continued detention isthe continuation of hostilities. 101 Thus, release of such persons is generally only required afterthe conflict has ceased. 102 As a matter of policy, release of lawfully detained persons oftenoccurs before the conclusion of hostilities. 103However, even after hostilities have ceased, other circumstances may warrant continueddetention of such persons. For example, persons who have participated in hostilities on behalf ofnon-State armed groups might be detained pending law enforcement proceedings and, after aconviction, pursuant to a lawful sentence. 1048.14.3.2 Safe and Orderly Release. If it is decided to release persons deprived oftheir liberty, necessary measures to ensure their safety shall be taken by those so deciding. 105For example, detainees should not be released into a situation in which the detainee would beattacked by hostile elements upon release. 106100 Consider AP I art. 75(3) (“Except in cases of arrest or detention for penal offences, such persons shall be releasedwith the minimum delay possible and in any event as soon as the circumstances justifying the arrest, detention orinternment have ceased to exist.”). Compare § 9.37 (Release and Repatriation After Hostilities); § 10.9.5 (ReleaseAs Soon As Reasons for Internment No Longer Exist).101 See, e.g., Hamdi v. Rumsfeld, 542 U.S. 507, 521 (2004) (plurality) (“we understand Congress’ grant of authority[under the AUMF] for the use of ‘necessary and appropriate force’ to include the authority to detain for the durationof the relevant conflict, and our understanding is based on longstanding law-of-war principles.”); Al-Bihani v.Obama, 590 F.3d 866, 874 (2010) (rejecting the argument that Taliban fighters must be released because the conflicthad formally concluded as a principle that “would make each successful campaign of a long war but a Pyrrhicprelude to defeat” and under which “the victors would be commanded to constantly refresh the ranks of the fledglingdemocracy’s most likely saboteurs.”). Cf. Stewart v. Kahn, 78 U.S. 493, 507 (1870) (“In the latter case, the [war]power is not limited to victories in the field and the dispersion of the insurgent forces. It carries with it inherentlythe power to guard against the immediate renewal of the conflict and to remedy the evils which have arisen from itsrise and progress.”).102 Compare § 9.37 (Release and Repatriation After Hostilities).103 For example, DOD DIRECTIVE 2310.01E, DoD Detainee Program, 3m(2) (Aug. 19, 2014) (“Unprivilegedbelligerents may be released or transferred while active hostilities are ongoing if a competent authority determinesthat the threat the individual poses to the security of the United States can be mitigated by other lawful means. Suchmitigation may involve credible assurances that a receiving country will take appropriate steps to mitigate any threatthe detainee poses to the security of the United States and its interests, parole agreements by the detainee, or otheragreements with the government of the receiving State.”).104 Compare § 9.37.4.3 (POWs Undergoing Criminal Proceedings for an Indictable Offense).105 Consider AP II art. 5(4) (“If it is decided to release persons deprived of their liberty, necessary measures toensure their safety shall be taken by those so deciding.”).106 See Chairman’s Commentary to the Copenhagen Process: Principles and Guidelines 4.10 (“Detainingauthorities are to ensure that necessary measures are taken to ensure the safety of released detainees. For example, a505