Justice Breyer Raises Specter of Perpetual Detention Without Trial at Guantánamo

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.

Justice Breyer wrote that the Supreme Court should consider whether the legal basis to keep holding a particular person in detention can expire even if the broader conflict continues. “Today’s conflict may differ substantially from the one Congress anticipated when it passed” the 2001 force authorization, he wrote.

A lawyer for Mr. Alwi, Ramzi Kassem, a law professor at the City University of New York, called his client’s predicament a “cruel farce” and urged Congress or the executive branch to cap how long someone like his client can be imprisoned.

“That Moath remains behind bars although the courts found no evidence that he ever used arms against the United States shows just how inhumane both the government and the law have become in these cases,” Mr. Kassem said.

Mr. Alwi is a jailhouse artist who has crafted model boats from found objects at the prison. His work was featured at a John Jay College of Criminal Justice exhibit that stoked controversy in 2017, after which the Pentagon forbade the release of art from the prison.

The Supreme Court declined to hear the case as Congress is considering new provisions in its annual defense authorization bill for the first time since Democrats took control of the House of Representatives in the 2018 midterm elections.

On Monday, the House Armed Services Committee chairman, Representative Adam Smith, a Washington Democrat who supports closing the prison, disclosed draft language that would ban bringing any new wartime prisoners to the base. It would also omit the extension of a legal ban on the transfer of detainees to the United States for any purpose, which dates to 2011.

The bill has a long way to go before it would become law, and it is not clear whether the Republican-controlled Senate would agree to the provisions or whether Mr. Trump would sign it.

Mr. Smith said on Monday that he hoped Republican lawmakers, who in the Obama era tended to support strict detainee transfer restrictions, would be more willing to relax the rules under Mr. Trump, who has vowed to keep the prison open.

“I think the Republicans are a little bit more flexible about it because they trust President Trump to uphold their policies on this,” Mr. Smith. “We don’t mandate shutting down Guantánamo — we just remove the restriction if you want to do it.”

Neither provision mirrors language moving through the Senate. But any lifting of transfer prohibitions would permit the temporary transfer of detainees with urgent or complex medical needs to mainland United States military medical facilities — a provision approved in the Senate Armed Services Committee legislation.

Health care for aging detainees is a growing concern at Guantánamo. The military has repeatedly dispatched specialists, surgical teams and equipment there to provide treatment unavailable at the base’s small community hospital — at taxpayer expense.

The Bush administration brought about 780 detainees to Guantánamo before deciding to try to close the prison. The Obama administration, which also tried but failed to close it, inherited 242 detainees and further winnowed its population. The Trump administration’s policy is to keep the prison open, but it has brought no new detainees there.

Mr. Alwi is one of 40 remaining detainees. Nine have been charged or convicted in the troubled military commissions system; 26 have been deemed unable to be tried but recommended for continued detention; and five have been recommended for transfers to stable countries, although the Trump administration has not sought to carry them out.

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