Remember when the US courts used to guarantee the rights of any individual not to be imprisoned indefinitely without charge or trial, in defiance of all accepted domestic and international laws and treaties?
Yes, so do we, but unfortunately all that changed nearly 15 years ago, when the Supreme Court, in a case called Hamdi v. Rumsfeld, dealing with the sole US citizen held at Guantánamo, Yasser Hamdi, born in Baton Rouge, Louisiana in 1980, but living in Saudi Arabia since he was a child, ruled that foreign prisoners held at Guantánamo could be — yes, you guessed it — imprisoned indefinitely without charge or trial.
Hamdi, seized in Afghanistan in December 2001, had been held at Guantánamo until the US authorities realized that he was a US citizen, at which point he was moved to a military brig on the mainland, where he became one of three US citizens or residents held as “enemy combatants” and subjected to torture (the others being US citizen Jose Padilla, and legal resident Ali al-Marri).
In the Hamdi ruling, the Supreme Court (in a plurality opinion written by Justice Sandra Day O’Connor) specifically ruled that the Authorization for Use of Military Force (the AUMF), passed by Congress the week after 9/11 and authorizing the president to sweep up, in an undefined global dragnet, anyone he regarded as being connected to al-Qaeda or the Taliban, or in relation to the 9/11 attacks, could be detained “for the duration of the relevant conflict,” in order to prevent them from returning to the battlefield, a decision that effectively endorsed a parallel — and unnecessary — version of the Geneva Conventions, which permits the detention of combatants until the end of hostilities.
However, while the specific wording of the Hamdi ruling doesn’t sound like an authorization of indefinite detention without charge or trial, in reality that is what has transpired, as all efforts made by prisoners in the last few years to establish that the “relevant conflict” has ended have been turned down by the courts.
In January 2015, President Obama declared, in his State of the Union Address, “Tonight, for the first time since 9/11, our combat mission in Afghanistan is over.” Lawyers for Mukhtar al-Warafi, a Yemeni prisoner, then asked a federal court to order his release, as I explained in an article at the time, because, as Shane Harris described it in an article for the Daily Beast, al-Warafi said that, “since President Obama has declared the war in Afghanistan is over, there are no longer any legal grounds to hold him.” As Harris also explained, however, “when US attorneys respond, they could argue that, in fact, hostilities haven’t come to a conclusion, and there are still grounds to hold the man. That could put them the strange position of undercutting the president, and arguing that just because the commander-in-chief says the war is over doesn’t necessarily make it so.”
In July 2015, Harris’s suggestion came true, when, as the New York Times described it, and as I explained in another article, District Judge Royce C. Lamberth “ruled that regardless of what Mr. Obama has said about the status of the war in Afghanistan, there continues to be fighting between the United States and the Taliban. As a result … the government retains the legal authority to detain enemy fighters, including Taliban members, to prevent them from returning to that fight.” Judge Lamberth stated, “A court cannot look to political speeches alone to determine factual and legal realities merely because doing so would be easier than looking at all of the relevant evidence. The government may not always say what it means or means what it says.”
Subsequently, Moath al-Alwi (aka Muaz al-Alawi), a Yemeni prisoner held at Guantánamo since January 16, 2002, just five days after the prison opened, revisited the “end of war” argument. Al-Alwi had spent years lawfully seeking his release from Guantánamo. Back in June 2004, on the same day that the Hamdi ruling was delivered, the Supreme Court also ruled, in Rasul v. Bush, that the prisoners at Guantánamo could petition federal courts for writs of habeas corpus to review the legality of their detention. Lawyers were then allowed to take on clients in the prison, and in 2005 al-Alwi petitioned for a writ of habeas corpus. Unfortunately, Congress then moved to take away the prisoners’ habeas rights, and it wasn’t until June 2008, in Boumediene v. Bush, that the Supreme Court revisited the Guantánamo cases, granting the prisoners constitutionally guaranteed habeas rights.
Al-Alwi’s habeas petition was subsequently decided in December 2008, when District Judge Richard Leon ruled that he could continue to be held because he had “stayed at guest houses associated with the Taliban and al-Qaeda … received military training at two separate camps closely associated with al-Qaeda and the Taliban and supported Taliban fighting forces on two different fronts in the Taliban’s war against the Northern Alliance.” In other words, as I explained in an article at the time, Judge Leon ruled that he “could be held indefinitely without charge or trial because, despite traveling to Afghanistan to fight other Muslims before September 11, 2001, ‘contend[ing] that he had no association with al-Qaeda,’ and stating that ‘his support for and association with the Taliban was minimal and not directed at US or coalition forces,’ he was still in Afghanistan when that conflict morphed into a different war following the US-led invasion in October 2001.”
Al-Alwi then appealed, but his appeal was turned down by the D.C. Circuit Court in July 2011. He then appealed to the Supreme Court, but was one of seven cases that were turned down in June 2012. To its shame, the Supreme Court has not taken up a Guantánamo case since Boumediene was decided in June 2008. Al-Alwi also had a request for his release via a Periodic Review Board, a parole-type process established under President Obama, turned down in October 2015.
What’s particularly depressing about all of this is that, although al-Alwi has, over the years, resisted the fundamental lawlessness of his imprisonment by becoming a long-term hunger striker, he doesn’t seem to pose any kind of threat to the US. In 2017, he became celebrated, amongst those inclined to remember that the Guantánamo prisoners are human beings, as a talented artist who was spending all his time making beautiful sailing ships out of cardboard and whatever other discarded materials he could scavenge.
Al-Alwi’s second habeas petition, submitted in 2015, was turned down by the District Court, and an appeal was then turned down by the D.C. Circuit Court in August 2018. He then asked the Supreme Court to consider that, as the New York Times described it, “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.”
The Supreme Court and Justice Breyer
Last week, however, unfortunately but predictably, the Supreme Court refused to take up his case, but in a statement accompanying the refusal, Justice Stephen Breyer declared that it was “past time to confront [a] difficult question left open by Hamdi” — whether “detention for the ‘duration of the relevant conflict’ could amount to ‘perpetual detention.’”
Specifically, Justice Breyer wrote:
Justice O’Connor’s plurality opinion [in Hamdi] cautioned that “[i]f the practical circumstances” of that conflict became “entirely unlike those of the conflicts that informed the development of the law of war,” the Court’s “understanding” of what the AUMF authorized “may unravel.” Indeed, in light of the “unconventional nature” of the “war on terror,” there was a “substantial prospect” that detention for the “duration of the relevant conflict” could amount to “perpetual detention.” But as this was “not the situation we face[d] as of th[at] date,” the plurality reserved the question whether the AUMF or the Constitution would permit such a result.
With reference to al-Alwi’s case, Justice Breyer noted that the court of appeals (the D.C. Circuit Court) “agreed with the Government that it may continue to detain him so long as ‘armed hostilities between United States forces and [the Taliban and al-Qaeda] persist.’ 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.’”
Justice Breyer concluded, “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.”
Justice Breyer’s intervention is commendable, but as Mark Joseph Stern explained last week in an article for Slate, it is 15 years too late. At the time of Hamdi, four Justices formed the plurality (O’Connor, Chief Justice William Rehnquist, Anthony Kennedy, and Breyer), while two others, David Souter, joined by Ruth Bader Ginsburg, “concurred with the plurality’s judgment that due process protections must be available for Hamdi to challenge his status and detention, providing a majority for that part of the ruling,” but “dissented from the plurality’s ruling that [the] AUMF established Congressional authorization for the detention of enemy combatants.”
Just one Justice, Clarence Thomas, sided entirely with the Bush administration, while two others — the conservative Antonin Scalia, joined by the veteran liberal Justice John Paul Stevens — dissented, noting, as Mark Joseph Stern put it, that “Congress had failed to suspend the writ of habeas corpus, which grants individuals the right to challenge their detention,” and that, “Unless and until Congress suspends this right — which it can only do ‘in cases of rebellion or invasion’ — the president cannot revoke citizens’ due process.” Moreover, as Stern described it, Scalia noted that “the AUMF does not actually confer the broad detention powers the government claimed. Thus, Hamdi should either have been given a fair trial or released.”
As Stern proceeded to explain, “Scalia and Stevens, the strange bedfellows who defended habeas corpus, are gone. The court’s Guantánamo swing votes, O’Connor and Kennedy, have resigned, replaced by Justices Samuel Alito and Brett Kavanaugh. Both staunchly oppose rights for Guantánamo detainees. Indeed, while serving on the US Court of Appeals for the District of Columbia Circuit, Kavanaugh played a leading role hobbling Kennedy’s efforts to bring constitutional protections to Guantánamo.”
Mark Joseph Stern also asked what, for Justice Breyer, would be “an appropriate case” for certiorari. “Why isn’t al-Alwi’s case appropriate?” he asked, noting that “Breyer didn’t say.” In Breyer’s defense, however, it may be that he has correctly surmised that, given the Supreme Court’s current line-up, no victory is possible. With Kavanaugh having to recuse himself from Guantánamo matters because of his history, any ruling is likely to be split 4-4, with Breyer, Ruth Bader Ginsburg, and Obama’s two nominees, Sonia Sotomayor, Elena Kagan on one side, and Thomas, Alito, Trump’s other nominee Neil Gorsuch, and Chief Justice John Roberts on the other, preserving the current, and thoroughly unsatisfactory state of affairs.
And yet the need for some part of the machinery of US government to take action to bring this disgraceful situation to an end is one of perpetual urgency, if the law is to mean anything at all in the United States.
As Mark Joseph Stern explained, since Hamdi, “the Supreme Court has allowed an expansion of indefinite detention beyond so-called enemy combatants. In two recent cases, the conservative majority has allowed the Trump administration to detain certain immigrants indefinitely — a development that Breyer decried as betrayal of ‘our basic values.’ With the court’s assent, Immigration and Customs Enforcement is creating an archipelago of Guantánamos where due process has been suspended for immigrants.” As Stern also noted, Breyer wrote in a 2018 dissent, “I would find it alarming to believe that Congress” intended this result.
Stern’s conclusion is relevant:
There is a lesson to be gleaned from these awful cases: The power of indefinite detention is a weapon that presidents can wield recklessly and brutally. In Hamdi, the Supreme Court turned over this weapon to the executive branch, which continues to use it in a predictably appalling and arbitrary manner. Congress must repeal the AUMF, as well as any statute — particularly immigration laws — that can arguably be read to allow endless imprisonment. 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.”
Or, as the Los Angeles Times put it in an editorial, addressing whether the “nature of the current war against Al Qaeda and similar groups justifie[s] open-ended detention,” “The sooner the [Supreme] Court faces that question , the better, because there seems little chance that either Congress or the Trump administration will move decisively to address the issue. Yet it needs to be addressed, because it is utterly inimical to our laws and our Constitution to hold dozens of people for decades — or even indefinitely — in an offshore prison without charging them with specific crimes or allowing them to face their accusers or to refute the charges by presenting evidence.”
We couldn’t agree more.