Today the Supreme Court declined an opportunity to examine whether it's still acceptable to hold enemy combatants in Guantanamo Bay at a time when Washington's interventions in Afghanistan and Iraq no longer resemble anything the U.S. was doing in the direct wake of 9/11.
Moath Hamza Ahmed al-Alwi, a Yemeni citizen, has been imprisoned in Guantanamo Bay since January 2002, when he was captured in Pakistan fleeing Afghanistan. He was initially accused of being a veteran terrorist combatant and a former Osama bin Laden bodyguard. Much later, in 2015, officials concluded he was most likely not a former bodyguard; while he was affiliated with Al Qaeda and the Taliban, it's unclear whether he was engaged in any sort of combat against the United States. He's one of 40 prisoners still detained there.
He's been sitting in Guantanamo Bay for 17 years, but the U.S. government has not charged him with any crimes. It doesn't appear to intend to charge him with anything, but it also refuses to release him, because the Authorization for Use of Military Force (AUMF) to wage war in Afghanistan and against the Taliban and al Qaeda remains in force.
In 2004's Hamdi v. Rumsfeld decision, the Supreme Court ruled that the AUMF authorized such detentions with an understanding that this authorization ended at the conclusion of the war. But even in 2004, the majority was cognizant of the possibility that this amorphous "war on terror" was likely to change over time. In the ruling, written by then-Justice Sandra Day O'Connor, it notes: "If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel. But that is not the situation we face as of this date."
The nature of our military actions has most certainly changed 15 years later. Lawyers representing al-Alwi petitioned the Supreme Court, noting that open hostilities in Afghanistan have ended even though the AUMF remains in force. Right now, America's military interventions in Afghanistan are against tribal forces and terrorist groups that bear no resemblance to those al-Alwi once served. The petition to the Supreme Court raised three questions: whether the government's authority to detain al-Alwi has "unraveled" given the phrasing in the initial Hamdi decision; whether the authority to detain al-Alwi has expired because that particular conflict in Afghanistan has ended (regardless of whether the AUMF is still in effect); and whether the AUMF could authorize the continued indefinite detention of an individual who was not shown to have been "engaged in an armed conflict against the United States" prior to his capture. President Donald Trump's administration asked the Supreme Court to reject the appeal.
Today the justices announced they wouldn't consider the case (with Justice Brett Kavanaugh taking no part in the considerations or the decision). The Supreme Court justices often don't explain or comment on cases they decline. But Justice Stephen Breyer, who ruled with the majority in Hamdi, released a statement that he would have granted certification to review the case. He thinks it's time, more than a decade later, to confront the questions Hamdi left unanswered:
The Government represents that such hostilities are ongoing, but does not state that any end is in sight….As a consequence, al-Alwi faces the real prospect that he will spend the rest of his life in detention based on his status as an enemy combatant a generation ago, even though today's conflict may differ substantially from the one Congress anticipated when it passed the AUMF, as well as those "conflicts that informed the development of the law of war." Hamdi, 542 U. S., at 521 (plurality opinion).
Read Breyer's full statement at the end of today's Supreme Court orders here.