Supreme Court Won't Reconsider Guantanamo Bay's Indefinite Detentions

A never-ending war may mean a life sentence for being classified as an enemy combatant.


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.

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  1. Obama would have solved this problem, but the mean Republicans in Congress wouldn’t let him.

    In any case, the proper thing to do is free these prisoners and invite them to immigrate to the US.


    1. Might have been an interesting question – does the President’s authority as CinC outweigh Congress’ power of the purse? If Obama ordered Gitmo closed down, can Congress actually order it be kept open? Or suppose we had the reverse of the norm – Congress declares a war but the President refuses to order troops into battle. What happens then?

      1. Trump sent Ahmed al-Darbi to Saudi Arabia. Nothing happened. If he had the remaining prisoners flown to, oh, Yemen and dumped them in a desert somewhere, I’m not sure anyone could do anything about it. There’d be political backlash, but legally…?
        After that congress could allocate all the money it wanted to Gitmo and the Marines could buy some gold-plated Humvee’s.

        1. I favor just pulling them out and executing them. Easy peasy.

      2. If I remember Obama didn’t just want to close it down and release, he wanted to close and ship and store in the USA. I would think he could close down and release without much Congressional interference. But when you want to hold them in federal prisons then Congress gets a say because that is now new spending. That’s what I remember anyway from when Obama first thought about doing that. It could be that Congress members just got on their soap boxes and made enough noise that the Obama admin just backed away from it.

        I would thing in the war scenario – impeachment would be the remedy for that.

    2. Bitter, mean right-wing bigots are among my favorite faux libertarians.

      Carry on, clingers. Not much longer, though.

      1. Well said, Art. By 2021 at the latest*, we’ll have a Democratic President who cares about brown bodies and would never tolerate putting them in cages.

        * (Or possibly earlier.)

        1. LOL!! That link is from 10/17….Might be a bit past its expiration date….Da Witch ain’t coming back to presidential politics…Time to find yerself a new Corrupt, Greedy, Lawless, war Mongering LIB….Hey, doesn’t that describe Uncle Joe?

    3. You mean the same Obummy, the Nobel Peace Prize winner, who expanded & intensified America’s IMMORAL & ILLEGAL wars?

      The same Obummy who made Shrub #2 look like Mr. Rogers?

      1. Can you remind me again on how Trump is doing on ending those “IMMORAL & ILLEGAL wars”?

        1. You can demonstrate where he expanded them. That is the comparison after all.

          1. Obummy went into Syria, Libya & Yemen after Bush #2!

        2. I don’t recall that Trump, unlike Obama, promised to end them.

          1. They both promised to end them! They both lied!

        3. He is not doing good….Just pointing out to OBL, that they are ALL War Criminals…Bush #2, Obummy & Trump!

  2. “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.”

    Law of war supersedes the Constitution, but only an unpatriotic commie would suggest there’s any reason not to trust the government absolutely with powers greater than those granted by the Constitution, including the power to decide just what those powers are. You’re not an unpatriotic commie, are you?

    1. These are military POWs….Either charge them with a crime in a military tribunal & once convicted either hang them or incarcerate them or if not found guilty, then release them!

      To leave them sitting there with no charges for decades is wrong!

      1. Military POWs? Of what nation were their uniforms?
        “The Geneva Conventions do not recognize any lawful status for combatants in conflicts not involving two or more nation states, such as during civil wars between government’s forces, and insurgents”

        1. If these guys at Gitmo are not considered combatants of the Taliban for Afghanistan or the Iraqi Army, then we kidnapped them. There is no other Constitutional authority for grabbing people outside the USA without specifying authorization under Article I, Section 8:
          To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

          Either they deserve a civil trial for crimes as a criminal or military tribunal or Congress needs to give legal authority to their capture.

          The SCOTUS refuses to say how many other justices sided with Breyer on granting review but there was not 4 justices to grant review (excluding Kavanaugh).

          1. Since they weren’t uniformed soldiers of any recognized nation/state, we could have summarily executed them and it wouldn’t be a violation of the Geneva Convention. Per the Geneva Convention, an illegal (non-uniformed) combatant can be summarily executed in the field on the concurrence of any two officer. If two green lieutenants agree that you are an illegal combatant, they can put a bullet in your head.

            1. But isn’t it “torture” because of the mental anguish they would endure while being lined up to be executed?? Unfortunately you can’t torture pursuant the Geneva Convention so that means you can only kill people by surprise. 😉

              1. Fortunately the Geneva Convention does not apply to these people.

        2. If they are POWs, then they may legitimately be held until the war they were involved in ends. If they are not, then they are rebels and may be handed over to the legitimate government of the country they rebelled against to be shot out of hand. Pick your alternative.

      2. If these are military POWs, then by international law, they are supposed to be held, without charges, until such time as either hostilities between the US and the Taliban end, or they have been properly exchanged for other POWs.

        As for whether hostilities have ended like this guy’s lawyers claim, the Associated Press says the Taliban, who carry out “near-daily attacks”, “control half of Afghanistan”. At least as of eleven hours ago.

  3. Theoretically, it makes sense that the SCOTUS decided this way. The AUMF was specifically written to NOT be limited to a geographical area. Wars are not fought with territories, they are fought between political entities. Despite the war in Afghanistan winding down, the US remains at war with Eurasi- I mean Al Qaeda.

    The key thing for people to remember is that international law is brokered between nations, not between a nation and its people. The people are a side interest. International War law, such as the Geneva Conventions were developed so that nations would feel more secure. They would not have to worry about fighting irregulars or their soldiers being blinded, because they had agreed to not fight in those ways. While this is a good thing for those fighting, that is a side effect of the national interests. This should be a warning to anyone who thinks they are going to take up arms against a government via some quasi-political entity. If you don’t manage to slay the beast, your best case scenario is rotting in a POW camp for life, and the worst case scenario is that you are judged in violation of the articles of war and hanged.

    The way to end GitMo is the same as it has been for the past 17 years- legislation. Either outlaw Gitmo in itself, providing some alternative legislated decision, or declare the war over by sunsetting the AUMF. Of course the idea that you will get even a third of reps/senators to put their name on such legislation is laughable.

  4. I’m good with whatever Pamela Geller recommends for these poor misunderstood and mistreated souls.

    1. Said the King to his servants about countless colonial men in the 1700s.

  5. This sucks.

  6. I vaguely remember the Framers believing indefinite detention absent a trail a crime upon against one’s individual rights; a crime commited often by the crown, that ought not be tolerated.
    Seems America has come full circle. The ‘supreme’ court of injustice and tyranny is a modern travesty.

    1. I recall the Framers saying drone strikes are kick ass and that we should kill Americans overseas with them. In Federalist #69 Publius writes—let’s light those m fers up like the Fourth of July!

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