The Supreme Court's decision Monday to not hear a Yemeni Guantanamo prisoner's appeal for release prompted Justice Stephen Breyer to call for a serious examination of the constitutional questions raised by detention of so-called "enemy combatants" in an age of endless war, and led one legal expert to argue it is time for Congress to tackle the problem at its root.
In a detailed examination of the Supreme Court's refusal to hear the petition of Moath Hamza Ahmed al-Alwi, lawyer and Slate legal journalist Mark Joseph Stern welcomed Breyer's belated concerns about perpetual detention but said nothing will change until Congress rolls back the 2001 Authorization for Use of Military Force (AUMF).
"I respect Breyer's Guantanamo opinion today, but perhaps he should've considered this problem before he cast the fifth vote in Hamdi permitting the government to detain 'enemy combatants' for the 'duration of the relevant conflict' without trial."
—Mark Joseph Stern, Slate
With the help of the Supreme Court, Stern wrote, the Bush administration interpreted and used the AUMF as a broad license to detain any individual deemed an enemy of the U.S. in the so-called "war on terror."
"Congress must repeal the AUMF, as well as any statute—particularly immigration laws—that can arguably be read to allow endless imprisonment," Stern argued. "The Supreme Court can no longer be trusted to enforce due process, despite Breyer's pleas. If Congress doesn't put a stop to this unconstitutional cruelty, no one will."
As Stern pointed out, the Supreme Court—including Breyer—"endorsed a key part of the Bush administration's AUMF theory" in its 2004 Hamdi v. Rumsfeld decision.
"Yaser Esam Hamdi was a U.S. citizen captured in Afghanistan, taken to Guantanamo, then transferred to a naval brig in the United States," Stern wrote. "Accused of joining the Taliban, Hamdi was deemed an enemy combatant, and the government asserted a right to hold him indefinitely without even bringing formal charges, let alone giving him a trial."
Hamdi challenged his detention, but the Supreme Court ultimately "agreed that the 2001 AUMF allowed the president to detain those he determines to be an enemy combatant," Stern wrote.
"The plurality," Stern added, "also agreed that these individuals are not owed full due process, even if they're U.S. citizens."
I respect Breyer's Guantanamo opinion today, but perhaps he should've considered this problem before he cast the fifth vote in Hamdi permitting the government to detain "enemy combatants" for the "duration of the relevant conflict" without trial. https://t.co/4sXG1Z1ha5
— Mark Joseph Stern (@mjs_DC) June 10, 2019
In his statement on Monday, Breyer pointed to the consequences of the Hamdi decision and said it is "past time to confront" the question of whether the Constitution permits the kind of perpetual detention that has kept Moath Hamza Ahmed al-Alwi and others behind bars for years without trial.
"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."
—Justice Stephen Breyer
"Some 17 years have elapsed since petitioner Moath Hamza Ahmed al-Alwi, a Yemeni national, was first held at the United States Naval Base at Guantanamo Bay, Cuba," Breyer wrote.
The U.S. government, Breyer added, claims the "hostilities" that provided a legal rationale for al-Alwi's detention "are ongoing, but does not state that any end is in sight."
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"As a consequence," Breyer wrote, "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."
Despite his expressed concerns and desire to reexamine the Hamdi decision, Breyer voted with his fellow justices to not hear al-Alwi's appeal for release, saying he will wait for "an appropriate case."
"Why isn't al-Alwi's case appropriate? Breyer didn't say," wrote Stern.
Following the Supreme Court's decision on Monday, lawyers for al-Alwi said the U.S. government has no justification for keeping him in detention.
"This has nothing to do with security. Moath is a victim of geopolitical and domestic politics," Ramzi Kassem, a law professor at the City University of New York and part of al-Alwi's legal team, told The Independent. "Both the U.S. government and the courts accept that he has never raised a hand against America.
"If his passport didn't say Yemen on its cover, if he were from a different, more important country, he would probably be home today," Kassem said. "This administration and the two previous ones have kept [Guantanamo] open for political reasons unrelated to sound policy. Today, keeping the prison open pleases Trump's base. So, from that point of view, Guantanamo pays."
Last month, Lee put forth an amendment to the 2020 Defense Appropriations Act that would sunset the AUMF over a period of eight months. The amendment passed the House Appropriations Committee by a party line vote of 30-22.
"As the Trump administration escalates tensions with Iran, it is more important than ever for Congress to reassert its constitutional authority," Lee said in a statement. "We must start by repealing the overly broad 2001 AUMF and do our job to debate and vote on any replacement."
Other members of Congress have expressed support for the effort to repeal the AUMF, including Rep. Alexandria Ocasio-Cortez (D-N.Y.).
"I think that our decision to enter unlimited engagement in Afghanistan, particularly through the AUMF + Congress' abdication of power + decision-making w[ith] passage of the AUMF, was a mistake," Ocasio-Cortez tweeted in March.
Stern expressed agreement with Ocasio-Cortez's view, writing in a tweet Tuesday, "AOC is right, repeal the AUMF."