IN JANUARY 2002, Moath al-Alwi, a Yemeni, was among the first 20 men sent to the Guantánamo Bay Naval Base in Cuba and held as an enemy combatant. About 780 men have passed through Guantánamo over the past 17 years, and Mr al-Alwi is one of only 40 prisoners left. On June 10, the High Court refused to entertain Mr al-Alwi’s latest legal challenge to his detention. There was no published disagreement from that discussion. But Justice Stephen Breyer wrote a statement urging his colleagues to raise a future case asking whether the Supreme Court’s 2004 decision allowing Mr al-Alwi’s acquittal should be upheld. be involved indefinitely. Justice Breyer asks the court to revisit the question of whether “Congress has authorized and the Constitution authorizes” the detention of enemy combatants in the war on terrorism which was launched two decades ago.
Mr. al-Alwi, according to the Department of Defense, is a “former jihadist” who “confessed to fighting for the Taliban” in al-Qaeda’s former 55th Arab Group. In 2008, Mr al-Alwi’s habeas corpus appeal – denying links to al-Qaeda and saying he had never taken up arms against America – was rejected in a federal district court. Three years later, the District of Columbia Court of Disability Appeals affirmed the lower court’s ruling. In 2015, Mr al-Alwi tried another tack. Instead of questioning the government’s account of his actions, he attacked the legal justification for his detention. In the days following the September 11 attacks, Congress passed the “Authorization for the Use of Military Force” (AUMF), authorizing the president to “use all necessary and appropriate force” against people who could be “planned, authorized, promised or guaranteed. he helped the terrorist attacks”. But that was 2001. Reflecting on the changed conditions in Afghanistan and the passage of time, Mr al-Alwi argued that the government’s “statutory authority to detain” has “evolved”. – or, on the other hand, “expired” because of the war during the war. which was caught “expired”.
This latest application draws from a language in Hamdi v Rumsfeld, the 2004 case 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 war”. But Justice Sandra Day O’Connor, who wrote the opinion, noted that the justification for keeping men without testing “could unravel” if the facts of evolution on the ground are “totally unlikely.” to the conflicts that informed the development of the law of war. “. Justice Breyer echoed that sentiment five years ago when the Supreme Court refused to hear another prisoner’s appeal in Husain vs. Obama. There are “unanswered questions” from Hamdi, he wrote, which the judges must ultimately resolve. This week in al-Alwi v. Trump, Justice Breyer showed more impatience. The prospect of “perpetual detention” for the remaining Guantánamo prisoners is terrifying, he wrote, and “it is time to face the difficult question” of how long it can last. AUMF continues to provide a legal basis for holding detainees without trial.
Mr al-Alwi had found no relief in the lower courts, with the district and appeal courts rejecting his arguments. In March, the Court of Appeals for the District of Columbia Circuit noted that the National Defense Authorization Act of 2012 allowed the government to detain enemy combatants until the end of hostilities in the Afghan theater. With “active combat” still going on – the Air Force has conducted more than 1,000 sorties there this year, about a third of those involved in live fire – there is no doubt that the hostility follow up. Either way, it would take “political action” to end the war, the court noted, not a legal declaration.
So Mr. al-Alwi and about three dozen other detainees languish at Guantánamo with little hope of release, barring an unlikely vote in Congress to repeal the AUMF. ‘ to put off getting older. Relief from the judge remains implausible. Two other cases pending in DC Circuit Court involve “prisoners forever” Khalid Ahmed Qassim, another Yemeni citizen, and Abdul Razak Ali, an Algerian. Both requested the first hearing “en banc” (as a full court) at the appeals court – a rare move reserved for “extremely important questioning” – and was denied. Instead, Mr. Qassim’s case was argued on January 15 before a regular panel of three judges; Mr. Ali’s day in court is coming. There is little reason to believe that either detainee will succeed in what Mr. al-Alwi did.
But there are at least two Breyeresque judges on the DC Circuit who would like their colleagues to solve the mess. In an opinion concurring in the decision not to hear Mr. Ali’s en banc challenge from the outset, Justice David Tatel (joined by Justice Cornelia Pillard) wrote that the court ever “Access of the Due Process Clause to Guantánamo Bay”. The D.C. Circuit issued a decision called Kiyemba v. Obama in 2009 involving a group of Uighur Muslims from China who were held at Guantánamo but were designated as enemy combatants. The inner question Strait whether the men – who feared arrest, torture or execution if returned to China – could be released to land America. The district court had said yes, but the DC Circuit disagreed: only Congress and the president had the authority to admit the Uyghurs to America.
For Judge Tatel, this ruling means only that Guantánamo detainees do not have a strong right to enter the United States. It does not abrogate the absurdly named right to “procedural due process”—a guarantee of fair treatment using standard, partially proven legal procedures for enemy combatants in Boudemine against Bush (2008). Mr. Ali’s claim that “the Due Process Clause has something to do with the length of his detention,” Judge Tatel wrote, “is very serious — and deserves to be taken seriously.” Guantánamo prisoners have not been charged with a crime, much less tried for one, but their detention “stretches into decades, with no end in sight”. The responsibility must be “carefully considered by this court”.
Will the men at Guantánamo be able to challenge their prison? Justice Breyer, for one, would like the Supreme Court to deal with asthma. Mr. al-Alwi “faces the very real prospect of spending the rest of his life in custody,” Justice Breyer said, “although today’s conflict may well be between -different from the one expected by the Congress”. Stephen Vladeck, a law professor at the University of Texas, is suspicious that Justice Breyer voted against a hearing al-Alwi against Trump because Justice Brett Kavanaugh’s refusal could have predicted a 4-4 tie, leaving the DC Circuit court’s decision in its place. But while the court is waiting to take an “appropriate case”, uncertainty reigns. It is “amazing”, Mr. Vladeck says, “just so little stabilization” since 2002. “Almost 18 years ago, we still don’t know if Guantánamo detainees even have due process rights”.
