IN JANUARY 2002, Moath al-Alwi, a Yemeni, was one of the first 20 men dispatched to the Guantánamo Bay Naval Base in Cuba and detained as an enemy combatant. Some 780 men have passed through Guantánamo over the past 17 years, and Mr al-Alwi is one of only 40 prisoners remaining. On June 10th, the Supreme Court refused to entertain Mr al-Alwi’s latest legal challenge to his detainment. There were no published dissents from that demurral. But Justice Stephen Breyer penned a statement imploring his colleagues to take up a future case asking whether the Supreme Court decision from 2004 permitting Mr al-Alwi’s confinement should apply indefinitely. Justice Breyer wants the court to revisit the question of whether “Congress has authorised and the Constitution permits” the detention of enemy combatants in a war on terror launched two decades ago.
Mr al-Alwi is, according to the Department of Defence, a “veteran jihadist” who “admitted fighting for the Taliban” in al-Qaeda’s former 55th Arab Brigade and served as a bodyguard to Osama bin Laden. In 2008, Mr al-Alwi’s habeas corpus plea—disclaiming ties to al-Qaeda and asserting he never took up arms against America—was rebuffed in a federal district court. Three years later, the District of Columbia Circuit Court of Appeals affirmed the lower court’s ruling. In 2015, Mr al-Alwi tried another tack. Rather than question the government’s account of his actions, he attacked the legal justification for his detention. In the days after the September 11th attacks, Congress passed an “Authorisation for the Use of Military Force” (AUMF), licence for the president to “use all necessary and appropriate force” against people who may have “planned, authorised, committed or aided the terrorist attacks”. But that was 2001. Reflecting on the changed circumstances in Afghanistan and the passage of time, Mr al-Alwi argued that “the government’s statutory authority to detain” him “has unravelled”—or, alternatively, “has expired” because the war during which he was apprehended “has ended”.
This latest plea draws from language in Hamdi v Rumsfeld, the case from 2004 in which the Supreme Court (with Justice Breyer joining the plurality) gave the president the power to detain enemy combatants as a “fundamental incident of waging war”. But Justice Sandra Day O’Connor, who wrote the opinion, noted that the justification for detaining men without trial “may unravel” if evolving facts on the ground “are entirely unlike those of the conflicts that informed the development of the law of war”. Justice Breyer picked up on that idea five years ago when the Supreme Court refused to hear another detainee’s appeal in Hussain v Obama. There are “unanswered questions” from Hamdi, he wrote, that the justices will eventually need to resolve. This week in al-Alwi v. Trump, Justice Breyer showed more impatience. The prospect of “perpetual detention” for the remaining Guantánamo prisoners is alarming, he wrote, and “it is past time to confront the difficult question” of how long an AUMF can continue to provide the legal foundation for holding detainees without trial.
Mr al-Alwi had found no relief in the lower courts, with both the district and appellate courts rejecting his arguments. In March, the District of Columbia Circuit Court of Appeals noted that the National Defence Authorisation Act of 2012 permitted the government to detain enemy combatants until the end of hostilities in the Afghan theatre. With “active combat” still underway—the Air Force has already conducted over 1000 sorties there this year, about a third of those involving weapon fire—there is no doubt that hostilities continue. In any case, it would take a “political act” to bring the war to a close, the court noted, not a judicial declaration.
So Mr al-Alwi and some three dozen fellow detainees languish at Guantánamo with little hope of release, barring an unlikely vote in Congress to rescind the aging AUMF. Relief from the judiciary remains elusive. Two other pending cases at the DC Circuit Court involve “forever prisoners” Khalid Ahmed Qassim, another Yemeni citizen, and Abdul Razak Ali, an Algerian. Both requested an initial hearing "en banc" (as a full court) at the appeals court—a rare move reserved for “a question of exceptional importance”— and were turned down. Instead, Mr Qassim’s case was argued on January 15th before a regular three-judge panel; Mr Ali’s day in court is coming. There is little reason to believe either detainee will fare better than Mr al-Alwi did.
But there are at least two Breyeresque judges on the DC Circuit who would like their colleagues to resolve the mess. In an opinion concurring with the decision not to hear Mr Ali’s challenge en banc from the outset, Judge David Tatel (joined by Judge Cornelia Pillard) wrote that the court has never clarified the “Due Process Clause’s reach into Guantánamo Bay”. The DC Circuit issued a ruling called Kiyemba v. Obama in 2009 involving a group of Uighur Muslims from China who had been detained at Guantánamo but who had been declassified as enemy combatants. The question in Kiyemba was whether the men—who feared arrest, torture, or execution if they were returned to China—could be released into American territory. The district court had said yes, but the DC Circuit disagreed: only Congress and the president had the authority to admit the Uighurs to America.
For Judge Tatel, this ruling implies only that Guantánamo detainees lack a substantive right to enter the United States. It does not rule out the clumsily named right of “procedural due process”—a guarantee of fair dealing using standard legal procedures that was partially vindicated for enemy combatants in Boudemine v Bush (2008). Mr Ali’s claim that “the Due Process Clause has something to say about the length of his confinement”, Judge Tatel wrote, “is serious—and deserves to be taken seriously”. Guantánamo’s prisoners have not been charged with a crime, much less tried for one, yet their detainments are “lengthening into decades, with no end in sight”. The conundrum “requires this court’s careful consideration”.
Will the men at Guantánamo ever be able to challenge their imprisonment? Justice Breyer, for one, would like the Supreme Court to address the quandary. Mr al-Alwi “faces the real prospect that he will spend the rest of his life in detention”, Justice Breyer notes, “even though today’s conflict may differ substantially from the one Congress anticipated”. Stephen Vladeck, a law professor at the University of Texas, suspects Justice Breyer voted against hearing al-Alwi v Trump because Justice Brett Kavanaugh’s recusal could have foretold a 4-4 tie, leaving the DC Circuit court’s ruling in place. But while the court awaits “an appropriate case” to take up, uncertainty reigns. It is “remarkable”, Mr Vladeck says, “just how little has been settled” since 2002. “Nearly 18 years in, we still don't know if the Guantánamo detainees even have due process rights”.