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Justice Breyer’s Question in al-Alwi: Is Detention Still Justified?

Robert Chesney
Monday, June 10, 2019, 3:47 PM

Has the statutory foundation for detention of enemy combatants quietly collapsed thanks to changing circumstances in Afghanistan? Justice Stephen Breyer is urging his colleagues to take up that question. Today they passed on the opportunity, but what if they had not?

U.S. Supreme Court. Source: Wikimedia/Joe Ravi

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Has the statutory foundation for detention of enemy combatants quietly collapsed thanks to changing circumstances in Afghanistan? Justice Stephen Breyer is urging his colleagues to take up that question. Today they passed on the opportunity, but what if they had not?

The Supreme Court today denied certiorari in the case of Moath al-Alwi, a man from Yemen who has been held as an enemy combatant at Guantanamo since 2002. Al-Alwi was captured in Pakistan in late 2001, and the government concluded that he had fought for the Taliban in Afghanistan as part of an al Qaeda-commanded unit. As well-described here, al-Alwi denied this unsuccessfully during his original round of habeas proceedings, and then in 2015 he initiated a new round of habeas litigation arguing (among other things) that the nature of U.S. involvement in Afghanistan had changed such that the use of military detention there no longer was justified under the 2001 Authorization for Use of Military Force (AUMF). The district court and the U.S. Court of Appeals for the D.C. Circuit disagreed, and today the Supreme Court declined to review the appeals court’s conclusion.

Justice Breyer was the lone dissenter from this denial (though he couched his dissent as a “statement” accompanying the denial rather than a dissent as such):

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 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.” … 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. ... In my judgment, it is past time to confront the difficult question left open by Hamdi. … 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.” … 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.” … 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.

The situation raises many important questions.

1. With only four votes needed to grant cert., why did Breyer end up standing alone in this instance?

While it takes only four justices to agree to take the case, it would take five to overturn the D.C. Circuit’s ruling for the government. And even with Justice Brett Kavanaugh recusing, it’s quite hard to see where five votes for al-Alwi would come from. Even if we assume that Breyer himself is pressing this question because he believes current circumstances indeed no longer warrant detention, and even if we assume that Justices Ruth Bader Ginsburg and Sonia Sotomayor would agree, it is not obvious to me that Justice Elena Kagan would follow suit, and I see no other justices doing so. At most this would produce a 4-4 ruling on the merits, leaving the D.C. Circuit’s opinion standing.

2. If the Supreme Court did take up this issue, what are some of the key legal questions that would arise?

As an initial matter, SCOTUS would have to wrestle with the “Ludecke question”—that is, the question of whether courts may reach a conclusion that a previously recognized state of armed conflict has come to an end or if, instead, that is a political question committed to the elected branches. The Supreme Court’s post-WWII Ludecke opinion suggests the latter, and the D.C. Circuit’s ruling in this case placed great weight on that precedent. If you’d like to understand more about it, I recommend Steve Vladeck’s 2006 article on that case.

I think it is very unlikely that a majority of the current Supreme Court would take a different view on this deference question. But let’s imagine that it somehow turns out otherwise. What then?

Next up, perhaps, would be the key statutory question. That is, the court would have to determine whether the 2001 AUMF—as glossed by the military detention provisions in the National Defense Authorization Act (NDAA) for fiscal 2012—is best read to hinge the length of military detention authority on the continuing existence of a relevant circumstance of armed conflict, as that concept is understood in the law of armed conflict. The AUMF itself, of course, says nothing specific about detention authority. Both the Bush and Obama administrations argued that it necessarily should be read to include such authority, SCOTUS agreed in 2004’s Hamdi ruling, the lower courts repeatedly agreed later in the habeas litigation arising out of Guantanamo, and then Congress in Sections 1021 and 1022 of the fiscal 2012 NDAA expressly stated that the AUMF should be read to confer such authority. Notably, though, both the Hamdi ruling and the NDAA language are equally explicit in relying on the law of armed conflict as the underlying foundation for that detention. The conclusion seems inescapable that, should there no longer be a relevant state of armed conflict, the enemy combatant detention authority conveyed by the combination of the AUMF and the NDAA would come to an end (though there might then be a residual authority to detain pending appropriate transition to an alternative disposition, such as prosecution or release).

Conversely, should there continue to be a relevant state of armed conflict, it seems equally clear that the AUMF/NDAA authority remains in place. Unless, of course, some other source of law required a different outcome. This brings us to the idea that the Constitution might somehow provide an overriding limitation in this circumstance.

How might that work? As an initial matter, such an argument would require the Supreme Court to conclude that noncitizen detainees at Guantanamo can claim the protections of the Fifth Amendment Due Process Clause and, thus, can make a substantive due process argument to the effect that the AUMF/NDAA authority to detain them at some point has expired or will expire notwithstanding the continuing existence of a state of armed conflict that otherwise would warrant continued detention. The former argument has strong legs, given Boumediene (though I must concede that the endlessly protracted military commission litigation at Guantanamo has yet to yield a clear and final answer to this question outside Boumediene’s Suspension Clause context). But the latter argument strikes me as quite weak, not to mention unlikely to fly with a majority of the current court.

At most, it seems to me, the due process argument would lead to a requirement of periodic review of the continued justification for detaining particular individuals. What then? Of course, there has long been a periodic review process that appears, in theory, to address exactly that concern. And for many years, under Presidents Bush and Obama, it was clear that this review process entailed a genuine possibility of release. The interesting question is whether that remains true. The periodic review process continues today, but at no point in recent years has it produced a recommendation to release a detainee, so far as I know. This could reflect the fact that there are relatively few detainees still at Guantanamo, to be sure, but it might also reflect a transition into a simulacrum of review without real discretion to recommend release when warranted. Absent some smoking gun document or testimony suggesting the process is a sham, it does not seem likely to me that this argument could catch on anytime soon.

All that said, let’s move on and assume that a majority does eventually accept some version of the view that detention authority might expire due to changed circumstances. The question then becomes: Have the factual circumstances in Afghanistan changed to the point that detention authority should be deemed expired?

3. What is the current factual circumstance in Afghanistan, anyway?

Information about U.S. military operations in Afghanistan seems much harder to come by these days compared to years past. In part this reflects Trump-era reductions in the transparency of military operations. And in part it reflects an unfortunate lack of public interest (and, therefore, media interest) in Afghanistan matters 17 years after Operation Enduring Freedom got underway in fall 2001.

All that said, a few things are clear. First, Taliban military operations in Afghanistan remain not only substantial but also apparently increasingly successful. Second, the U.S. military continues to play an active combat role against a variety of targets there. The details admittedly are sketchy (as far as I can tell), But here is a telling statistic: The Bureau of Investigative Journalism reports that the U.S. Air Force has conducted at least 289 close air support sorties, with weapons release, thus far in 2019:

U.S. Air Force Reported Operations, Afghanistan 2019

Total close air support (CAS) sorties with at least one weapon release


Total CAS sorties


Total weapons released


Much of this likely consists of airstrikes in support of Afghan forces engaged with Taliban forces. Some of it may reflect strikes targeting the Islamic State as well. At any rate, it is exceedingly hard to imagine the courts concluding that the circumstances in Afghanistan no longer constitute armed conflict in general.

Might there be room to argue that a current armed conflict exists but that it is no longer the same one for which at least some detainees (like al-Alwi) were detained nearly two decades ago? That is an interesting and important question. My initial reaction is that the argument in theory might work, if the right circumstances arose, but that it presents daunting line-drawing requirements, to say the least.

4. What about Congress?

It is worth emphasizing, in closing, that nothing said above should be read to diminish the importance of asking about the current state of the U.S. military engagement. Plainly, it seems to me, this should be a recurring subject of serious discussion, not just in the White House but in Congress as well.

Robert (Bobby) Chesney is the Dean of the University of Texas School of Law, where he also holds the James A. Baker III Chair in the Rule of Law and World Affairs at UT. He is known internationally for his scholarship relating both to cybersecurity and national security. He is a co-founder of Lawfare, the nation’s leading online source for analysis of national security legal issues, and he co-hosts the popular show The National Security Law Podcast.

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