Justice Breyer Raises Specter of Perpetual Detention Without Trial at Guantánamo

Justice Breyer Raises Specter of Perpetual Detention Without Trial at Guantánamo
The Supreme Court refused to hear the appeal of a man who has been held in wartime detention for 17 years with no end in sight.
By Charlie Savage and Carol Rosenberg
Jun 10 2019

WASHINGTON — The Supreme Court on Monday refused to hear a lawsuit by a Yemeni man who has been held in wartime detention for more than 17 years at the military’s Guantánamo Bay prison, prompting Justice Stephen G. Breyer to warn that the American legal system is on autopilot toward permitting life imprisonment without trial.

“It is past time to confront the difficult question left open by” a 2004 ruling allowing the indefinite detention of Guantánamo detainees captured after the 2001 American invasion of Afghanistan, Justice Breyer wrote in a dissenting opinion.

That difficult question: In a war that effectively has no end, is it lawful to hold a person in perpetual detention, until he dies of natural causes decades after his capture, because he was once part of an enemy force — though never charged with committing a crime?

Because fighting in Afghanistan against Al Qaeda and the Taliban continues with no end in sight, the roughly 42-year-old detainee who brought the case, who was captured there in 2001 and taken to the naval base in Cuba in January 2002, “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,” Justice Breyer wrote.

Unlike most habeas corpus lawsuits by detainees, which focused on whether there was sufficient factual evidence to establish that they had been members of the enemy force, the one brought by the plaintiff, Moath Hamza Ahmed al-Alwi, did not challenge accusations that he had served in a Qaeda militia helping the Taliban fight the Northern Alliance in Afghanistan. (He also did not concede they were accurate.)

Instead, he argued that the legal basis for holding him as a wartime detainee had unraveled because so much time had passed since his capture and because the conflict in Afghanistan had changed. But an appeals court panel disagreed, and only Justice Breyer was interested in taking up his appeal. 

Justice Breyer flagged similar concerns in 2014 when the Supreme Court decided not to hear the appeal of another Guantánamo detainee, but that detainee had not raised the legal arguments. However, none of the other justices joined him in his desire now to hear a case presenting the issues he had essentially invited.

After a series of landmark rulings about the rights of Guantánamo detainees in 2004, 2006 and 2008, the Supreme Court has not taken up such a case in 11 years. 

Still, Justice Breyer’s statement put a spotlight on a legal and moral dilemma that has been hovering around the edges of the war on terrorism since the Bush administration began bringing detainees from Afghanistan to Guantánamo in 2002.

Under the laws of war, to prevent captured enemies from returning to the battlefield, a military can detain them without trial until hostilities end. In 2004, the Supreme Court declared it lawful for the Bush administration to hold detainees at Guantánamo in open-ended detention without trial, citing that wartime practice and Congress’s 2001 decision to authorize military force against those responsible for Sept. 11 attacks.

But that practice developed in the context of traditional wars — the type that come to a definitive end after a few years and soldiers stop fighting and go home. A war against a loose-knit, evolving and transnational network of Islamist militants is different. 

It is not clear anyone has the authority to halt the war declared by Al Qaeda’s founder, Osama bin Laden, and make all its members stop fighting — especially because the network has splintered into associates and successor factions, like the Islamic State, which share Al Qaeda’s ideology but have their own leaders.


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