The Supreme Court on June 10th refused to hear a lawsuit by Moath al-Alwi, a Yemeni man who has been held in wartime detention for more than 17 years at Guantánamo Bay. In the aftermath of this refusal, Justice Stephen G. Breyer called for a re-examination of the 2004 Supreme Court decision – Hamdi v. Rumsfeld – which has been used to justify the indefinite detention of suspected terrorists, including Mr. al-Alwi, and other actors without trial.
Prior to that 2004 decision, Congress passed the Authorization of the Use of Military Force (AUMF), which states that the President may “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided” in the September 11th attacks. The case itself was concluded when a majority of this Court understood the AUMF to permit the President to detain certain enemy combatants for the duration of the relevant conflict. Breyer’s recent statement is particularly noteworthy because, he, along with Justices O’Connor, Rehnquist, and Kennedy, initially supported the decision in Hamdi v. Rumsfeld. However, this support was not without hesitation. In the plurality decision, Justice O’Connor cautioned that this understanding “may unravel” if the “practical circumstances” were to become “entirely unlike those of the conflicts that informed … the law of war.” She further concluded that the “unconventional nature” of the war on terror presented a “substantial prospect” that detention for the “duration of the relevant conflict” could amount to “perpetual detention.”
Because the “War on Terror” is so amorphous and enduring, it is difficult to establish when the “relevant” hostilities will end, if ever. Certainly, while the non-state and state actors present in the “war” in Afghanistan today are the same as those in the conflict in which al-Alwi supposedly participated, the tactics, alliances, and even leaders of those groups have changed significantly over time. It is important to ask: is this the same “relevant conflict” in which al-Alwi fought? In the context of the AUMF, it seems so. The general authorization to use appropriate force against organizations the President determines to have been a part of the September 11th attacks continues to operate because the Taliban continue to exist as an organization. Because Mr. al-Alwi supposedly confessed to fighting for the Taliban on the front lines as a member of Osama bin Laden’s 55th Arab Brigade, he is considered under US law as a member of an organization which was involved in the September 11th attacks.
The Supreme Court’s refusal to hear Mr. al-Alwi’s case means that, at least in the short-term, indefinite detention will continue to be an active part of U.S. policy unless Congress repeals the AUMF, an action which several legal experts have advocated in the past weeks.
Stepping back, it seems that the rolling back of the AUMF and the end of indefinite detention might be a wise political move as well. Despite the current domestic legality of indefinite detention, it may not be worth the political costs that it is incurring. As written previously in the IELR, the Council of Europe and European states have held hearings and litigated the illegality of the detention programs operated by the U.S. in support of the war on terror. Since 2015, the European Parliament has begun to move strongly against the war on terror-based US detention program, arguing that the fight against terrorism should respect the rule of law, human dignity, human rights, and fundamental freedoms. In one specific case, the U.S. could not find any country that would allow the U.S. to bring a detainee into their territories. While between 2002 and 2006, nearly a quarter of the world’s countries assisted the US government in the conduction of its covert rendition and detention program, the recent inability to find countries that will participate in the program is proof that the political landscape has significantly shifted. This political shift has had an impact on the viability of the detention program and might make it difficult to convince previously strong allies in the war on terror to participate in future campaigns. Consequently, if there is to be any hope to re-building global alliances in the war on terror, some thought must be given to repealing the AUMF or to ending the system of indefinite detention through other means. The current program, both for legal and for political reasons, is quickly becoming untenable.
 Zagaris, Bruce, “U.S. Court Upholds Interrogation of Libyan on Ship with Respect to Killing of US Ambassador in Benghazi,” International Enforcement Law Reporter, Vol. 33, Issue 9, Sep 2017.
 Plachta, Michael, “European Parliament’s Follow-up to the CIA Detention Sites and Torture in Europe,” International Enforcement Law Reporter, Vol. 32, Issue 6, June 2016.
 Zagaris, 2017.