Is there an expiration date on the war on terror? Not yet, the Supreme Court decided today, while also avoiding the question. The court turned down an appeal from an unlawful combatant detained at Gitmo that sued for his release, arguing that the war has “effectively ended” in Afghanistan:
The U.S. Supreme Court on Monday declined to wade into the contentious question of to what extent detainees held by the U.S. military at the American naval base at Guantanamo Bay, Cuba can seek their release, turning away an appeal by a Yemeni-born man held since 2001.
The court turned away an appeal by Yemeni detainee Moath Hamza Ahmed al Alwi, who was captured in Pakistan in December 2001 and detained without charge ever since. The U.S. government has said al Alwi was involved in fighting against U.S. and allied forces in Afghanistan and was closely linked with the Islamic militant group al Qaeda. …
Al Alwi, who was born in 1977 and is in his early 40s, has said he should be released, in part because the U.S. conflict in Afghanistan has “effectively ended.” His lawyers have said that the authority of the United States to hold him has “unraveled” because of the length of the conflict. In a 2018 decision, the U.S. Court of Appeals for the District of Columbia Circuit rejected his claims.
The authority of the United States to hold al Alwi and other Guantanamo detainees is based on the 2001 authorization for use of military force that Congress approved in the aftermath of the Sept. 11 attacks.
In turning down the request for cert, the Supreme Court left standing a unanimous decision by the DC appellate court. In an opinion that included chief judge Merrick Garland, the court ruled that the AUMF passed by Congress in 2001 is sufficiently broad to cover continuing operations in Afghanistan, regardless of how involved US forces are in actual combat:
As indicated above, the AUMF authorizes detention during active hostilities between the United States and the Taliban and al Qaeda. Nothing in the text of the AUMF or the National Defense Authorization Act suggests that a change in the form of hostilities, if hostilities between the relevant entities are ongoing, cuts off AUMF authorization. Cf. Al-Bihani, 590 F.3d at 874 (rejecting petitioner’s argument that “current hostilities are a different conflict” based on Taliban shift from government to non-government form and noting common sense and laws of war “do not draw such fine distinctions”); Ali, 736 F.3d at 552 (acknowledging that “this is a long war with no end in sight” but stating that “war against al Qaeda, the Taliban, and associated forces obviously continues” and detention authority under AUMF has no statutory “time limit”). However characterized, the Executive Branch represents, with ample support from record evidence, that the hostilities described in the AUMF continue. In the absence of a contrary Congressional command, that controls. See Ludecke, 335 U.S. at 168–70 (deferring to political branch determination that “war with Germany” persisted despite fact that Germany had “surrender[ed]” and “Nazi Reich” had “disintegrat[ed]”).
Al-Alwi also argues that the United States’ entry into a bilateral security agreement (Agreement) with Afghanistan “mark[ed] the end of the original armed conflict” resulting in Al-Alwi’s detention “and the commencement of a new one.” Appellant’s Br. 33. In the Agreement, the United States declared that its “forces shall not conduct combat operations in Afghanistan.” Security and Defense Cooperation Agreement, Afg.-U.S., Art. 2 ¶ 1, Sept. 30, 2014. Instead, the United States agreed to “undertake supporting activities” to assist Afghan security. Id. at Art. 2 ¶ 2. Al-Alwi contends that the United States’ new role as a result of the Agreement changed the “relevant conflict” and therefore the United States Government has been divested of authority to detain him.
But the Agreement does not declare an end to the conflict on which Al-Alwi’s detention is based and the beginning of a new one. Although the Agreement indicates that the United States’ military operations in Afghanistan have changed, at the same time it “acknowledge[s] that U.S. military operations to defeat al-Qaida and its affiliates may be appropriate in the common fight against terrorism.” Id. at Art. 2 ¶ 4. The Agreement also contemplates “U.S. military counter-terrorism operations.” Id. It does not declare an end to the conflict resulting in Al-Alwi’s detention and the beginning of a different one.
However, the unanimous ruling did offer a glimmer of hope in future challenges:
Al-Alwi raises three additional arguments on appeal. First, he asserts that his continued detention, even if authorized by the AUMF, violates substantive due process protections. Second, he asserts that procedural due process requires more procedural protections in future proceedings, including a greater evidentiary burden of proof, than he has received so far. Third, he asserts that the district court should have allowed limited discovery on the differences between Operation Enduring Freedom and Operation Freedom’s Sentinel.
We do not reach the merits of these arguments, however, because Al-Alwi forfeited them. Neither Al-Alwi’s habeas petition nor his opposition to the Government’s motion to dismiss mentioned any of these arguments. And Al-Alwi made none of the claims at oral argument in district court. By not asserting these arguments in the district court, Al-Alwi forfeited them and we do not reach them. See Keepseagle v. Perdue, 856 F.3d 1039, 1053 (D.C. Cir. 2017) (“issues and legal theories not asserted” in district court “ordinarily will not be heard on appeal” (internal quotation omitted)).
That doesn’t explicitly state that such grounds might change the court’s position on continued detention at Gitmo. It pointedly doesn’t discuss those issues at all, though, rather than address them in a refusal. As the opinion notes, that’s based on important procedural precedent, but other attorneys must look at that as at least a tiny opening for future challenges.
This appeal failed to get the requisite four justices to grant cert, but Justice Stephen Breyer clearly wants this issue settled by the judiciary. In a sternly written dissent from the refusal to grant cert, Breyer declares that it is “past time” for a reckoning in detention policy:
In my judgment, it is past time to confront the difficult question left open by Hamdi. See Boumediene v. Bush, 553 U. S. 723, 797–798 (2008) (“Because our Nation’s past military conflicts have been of limited duration, it has been possible to leave the outer boundaries of war powers undefined. If, as some fear, terrorism continues to pose dangerous threats to us for years to come, the Court might not have this luxury”); Hussain v. Obama, 572 U. S. 1079 (2014) (statement of BREYER, J., respecting denial of certiorari).
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. In the decision below, the District of Columbia Circuit 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.” 901 F. 3d 294, 298–299 (2018). The Government represents that such hostilities are ongoing, but does not state that any end is in sight. Brief in Opposition 4–5. 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.” Hamdi, 542 U. S., at 521 (plurality opinion).
Perhaps, but that is a political question for Congress. Nothing in the Constitution deals with detention of enemy combatants, lawful or otherwise, especially abroad, therefore it isn’t a judicial question at all. Al-Alwi didn’t commit a crime in a US jurisdiction; he participated in a terrorist network making war on America abroad. In earlier times, he would have been hung after capture. Perhaps he should consider himself fortunate to still be getting three hots and a cot.
At some point — and that time is likely coming closer — Congress will amend or replace the existing AUMFs to tailor war authority more closer to today’s threats in the war on terror. At that point, the executive branch will have to reconcile the status of the remaining Gitmo detainees in light of the new authorization. Meanwhile, the best way for a terrorist to avoid being detained for “the rest of his life” is to not participate in a terrorist war against the United States of America.
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