The Supreme Court on June 10 denied certiorari in the case of Moath Hamza Ahmed al-Alwi, a Yemeni who has been held as an “enemy combatant” at Guantánamo since 2002. Al-Alwi was captured in Pakistan in late 2001, and the government concluded that he had fought in Afghanistan as part of a Qaeda-commanded unit. Al-Alwi denied this unsuccessfully during his original round of habeas corpus proceedings, and in 2015 initiated a new habeas case arguing that the nature of US involvement in Afghanistan had changed such that the use of military detention is no longer justified under the 2001 Authorization for Use of Military Force (AUMF). The district court and the US Court of Appeals for the DC Circuit disagreed, and the Supreme Court has now declined to review the appellate court’s conclusion.
Justice Stephen Breyer was the lone dissenter from this denial—although he couched his dissent as a “statement” accompanying the denial rather than a dissent as such. In his “statement,” Breyer questioned whether Hamdi v. Rumsfeld, the 2004 Supreme Court decision allowing indefinite detention under the AUMF, should be interpreted as standing in perpetuity: “In Hamdi v. Rumsfeld…a majority of this Court understood the AUMF to permit the President to detain certain enemy combatants for the duration of the relevant conflict… Justice [Sandra Day] O’Connor’s plurality opinion 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.’ …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.” (Lawfare)
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