U.S. Supreme Court

Breyer says SCOTUS has to decide whether Guantanamo detainees can continue to be held

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Aerial view of the U.S. Naval Station at Guantanamo Bay, Cuba.

U.S. Supreme Court Justice Stephen G. Breyer said Monday that the high court should consider whether the Constitution permits continued detention of Guantanamo detainees.

Breyer called for Supreme Court action in a statement respecting its refusal to hear the case of Moath Hamza Ahmed al-Alwi, a Yemeni national who has been detained for about 17 years. Justice Brett M. Kavanaugh did not participate in the court’s consideration of the cert denial.

The U.S. government has argued that al-Alwi may continue to be held because of continued armed hostilities between U.S. forces and the Taliban and al-Qaida. The U.S. Court of Appeals for the District of Columbia Circuit sided with the government.

“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,” Breyer wrote.

After the Sept. 11 attacks, Congress authorized the use of force against nations, organizations and individuals that planned or aided the attacks. In the 2004 Supreme Court decision Hamdi v. Rumsfeld, the U.S. Supreme Court interpreted the authorization to permit the president to detain enemy combats for the “duration of the relevant conflict.”

In her plurality decision in Hamdi, Justice Sandra Day O’Connor said there was a chance that detention during the duration of the conflict would amount to “perpetual detention.” She said the court didn’t have to decide whether the Constitution or the authorization would permit that result because the situation was not before the court.

“In my judgment,” Breyer wrote, “it is past time to confront the difficult question left open by Hamdi.”

The government hasn’t indicated that there is any end in sight to the conflict with the Taliban and al-Qaida, Breyer said. And the current conflict may differ substantially from what Congress anticipated when it passed the authorization, known as the Authorization for Use of Military Force.

“I would, in an appropriate case, grant certiorari to address whether, in light of the duration and other aspects of the relevant conflict, Congress has authorized and the Constitution permits continued detention,” Breyer wrote.

Hat tip to SCOTUSblog. The case is al-Alwi v. Trump.

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