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U.S. Supreme Court Denies Certiorari in Habeas Case Brought by Guantánamo Bay Detainee Challenging His Continuing Detention

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On June 10, 2019, the Supreme Court denied certiorari in a case in which the D.C. Circuit held that the United States could continue to detain an individual at Guantánamo Bay until the cessation of the hostilities that justified his initial detention, notwithstanding the extraordinary length of the hostilities to date. The case, Al-Alwi v. Trump, arises from petitioner Moath Hamza Ahmed Al-Alwi's petition for a writ of habeas corpus challenging the legality of his continued detention at the United States Naval Base at Guantánamo Bay. The Supreme Court's denial of certiorari was accompanied by a statement by Justice Breyer observing that “it is past time to confront the difficult question” of how long a detention grounded in the U.S. response to the September 11 attacks can be justified.

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References

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1 Al-Alwi v. Trump, 139 S. Ct. 1893 (2019).

2 Al-Alwi v. Trump, 236 F. Supp. 3d 417, 418 (D.D.C. 2017), aff'd, 901 F.3d 294, 295 (D.C. Cir. 2018), cert. denied, 139 S. Ct. 1893 (2019).

3 139 S. Ct., supra note 2, at 1894 (Breyer, J., statement respecting denial of certiorari).

4 The Guantánamo Docket, Moath Hamza Ahmed al Alwi, N.Y. Times (May 2, 2018), at https://www.nytimes.com/interactive/projects/guantanamo/detainees/28-moath-hamza-ahmed-al-alwi.

5 Al-Alwi v. Trump, 236 F. Supp. 3d, supra note 2, at 419 (also noting that the finding that at one point Al-Alwi had “voluntarily surrendered his passport at a guesthouse closely associated with al Qaeda”).

6 See id. at 418.

7 Authorization for Use of Military Force, Pub. L. No. 107-40, § 2(a), 115 Stat. 224 (2001) (further stating that such uses of force are “in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons”).

8 Al Alwi v. Bush, 593 F. Supp. 2d 24, 26 (D.D.C. 2008) (discussing how the case was held until after the Supreme Court's decision).

9 See generally id.; Al Alwi v. Obama, 653 F.3d 11, 13 (D.C. Cir. 2011).

10 Al-Alwi v. Trump, 901 F.3d 294, 296 (D.C. Cir. 2018).

11 See The Guantánamo Docket, supra note 4.

12 See Al-Alwi v. Trump, 236 F. Supp. 3d, supra note 2.

13 Id.

14 Id.

15 542 U.S. 507, 520–21 (2004) (plurality opinion) (considering the extent to which the 2001 AUMF authorized the detention of a U.S. citizen considered by the government to be an unlawful combatant).

16 Id. at 520.

17 Id. at 521.

18 Id.

19 See Al-Alwi v. Trump, 236 F. Supp. 3d, supra note 2.

20 Id. at 421.

21 Id. at 423 (quoting Hamdi, 542 U.S., supra note 15, at 520–21).

22 See Al-Alwi v. Trump, 901 F.3d, supra note 10, at 295.

23 Id.

24 Id. at 297.

25 Id. The court was referring not only to the 2001 AUMF, but also to the National Defense Authorization Act for Fiscal Year 2012. Id. That act “affirms” the president's power to detain covered combatants “under the law of war without trial until the end of hostilities authorized by the Authorization for Use of Military Force.” National Defense Authorization Act for Fiscal Year 2012, Pub. L. No. 112-81, § 1021, 125 Stat. 1298 (2011).

26 Al-Alwi v. Trump, 901 F.3d, supra note 10, at 297–98. The court did not discuss international human rights law. But see, e.g., Committee Against Torture, Conclusions and Recommendations on the Second Periodic Report of the United States of America, at para. 22, 36th Sess. May 1–19, 2006, UN Doc. CAT/C/USA/ CO/2 (2006) (“[D]etaining persons indefinitely without charge constitutes per se a violation of the Convention [against Torture.]”); UN Rights Chief Speaks Out Against US Failure to Close Guantánamo Detention Facility, UN News (Jan. 23, 2012), at https://news.un.org/en/story/2012/01/400992-un-rights-chief-speaks-out-against-us-failure-close-guantanamo-detention#.VQ2WoN75j8E [https://perma.cc/N8SR-UQFN] (condemning indefinite detention at Guantánamo Bay as a violation of international law).

27 See Al-Alwi v. Trump, 901 F.3d, supra note 10, at 299. Whether or not it should be characterized as the same conflict for purposes of the 2001 AUMF, the U.S. conflict in Afghanistan has changed its character considerably since 2001. See, e.g., Kenneth Katzman & Clayton Thomas, Cong. Research Serv., RL30588, Afghanistan: Post-Taliban Governance, Security, and U.S. Policy, at 17–22 (2017) (stating that “the enemy” in Afghanistan includes the Islamic State-Khorasan Province, which has only been active in Afghanistan since 2014 and noting that the various enemy groups are not always allied with each other); 159 Cong. Rec. H5002-01 (daily ed. July 24, 2013) (statement of Rep. Schiff) (stating that the AUMF is being “used to go after groups like al Shabaab, which may not even have been in existence at the time of 9/11”); U.S. Dep't of Defense, Enhancing Security and Stability in Afghanistan, at 17 (2019) (listing nine enemy groups that the U.S. is currently fighting in Afghanistan).

28 See Al-Alwi v. Trump, 901 F.3d, supra note 10, at 300.

29 Id.

30 Id. at 299 (citing Ludecke v. Watkins, 335 U.S. 160 (1948)). For further discussion of this issue, see Recent Case, Law of War—Guantánamo Detention Authority—D.C. Circuit Holds the Government's Authority Has Not Unraveled—Al-Alwi v. Trump, 901 F.3d 294 (D.C. Cir. 2018), 132 Harv. L. Rev. 1542, 1546–47 (2019).

31 Petition for Writ of Certiorari at 11, Al-Alwi v. Trump, 139 S. Ct. 1893, supra note 1.

32 Id. at 14.

33 Id. at 15.

34 Id. at 11–12.

35 Id. at 32.

36 Al-Alwi v. Trump, 139 S. Ct. 1893, supra note 1.

37 Id. at 1894 (Breyer, J., statement respecting denial of certiorari) (citations omitted). Justice Breyer had previously signaled concern about the length of detention justified under the 2001 AUMF. See, e.g., Hussain v. Obama, 572 U.S. 1079 (2014) (Breyer, J., statement respecting denial of certiorari) (agreeing with the Court's denial of certiorari on the ground that the petition at hand did not seek review of “unanswered questions” like “whether … either the [2001] AUMF or the Constitution limits the duration of detention”).

38 The Guantánamo Docket, supra note 4.

39 Human Rights First, Guantánamo by the Numbers (Oct. 10, 2018), available at https://www.humanrightsfirst.org/sites/default/files/gtmo-by-the-numbers.pdf.

40 See Respondents’ Opposition to Petitioners’ Motion for Order Granting Writ of Habeas Corpus at 7–9, Al-Bihani v. Trump, (D.D.C. filed Feb. 16, 2018) (No. 1:-4-cv-01194-UNA) (including a table with the status of eleven current detainees’ petitions for habeas corpus).

41 Center for Constitutional Rights Press Release, Gitmo Attorneys to Court: Find Perpetual Detention Unlawful and Order Release (July 11, 2018), at https://ccrjustice.org/home/press-center/press-releases/gitmo-attorneys-court-find-perpetual-detention-unlawful-and-order.

42 Motion for Order Granting Writ of Habeas Corpus at 1–4, Al-Bihani v. Trump (D.D.C. filed Jan. 11, 2018) (No. 1:09-cv-00745-RCL).

43 See Center for Constitutional Rights Press Release, supra note 41.

44 Carol Rosenberg, Guantánamo Bay as Nursing Home: Military Envisions Hospice Care as Terrorism Suspects Age, N.Y. Times (Apr. 27, 2019), at https://www.nytimes.com/2019/04/27/us/politics/guantanamo-bay-aging-terrorism-suspects-medical-care.html (quoting the detention center's commander as remarking that “[u]nless America's policy changes, at some point we'll be doing some sort of end of life care here”).

45 Protecting America Through Lawful Detention of Terrorists, Exec. Order No. 13823, 83 Fed. Reg. 4831 (Jan. 30, 2018); see also Galbraith, Jean, Contemporary Practice of the United States, 112 AJIL 326 (2018) (discussing this executive order in more depth).

46 See, e.g., John S. McCain National Defense Authorization Act for Fiscal Year 2019, Pub. L. No. 115-232, §§ 1032–35, 132 Stat. 1636 (2018) (prohibiting, among other things, the use of funds for transferring detainees to the United States).

47 National Defense Authorization Act for Fiscal Year 2020, §§ 1032–34, H.R. 2500, 116th Cong. (2019).

48 See National Defense Authorization Act for Fiscal Year 2020, §§ 1021–25, S. 1790, 116th Cong. (2019) (largely reiterating provisions that had been included in earlier NDAAs).

49 In the summer of 2019, for example, the House of Representatives included such a provision in another appropriation bill—a bill that, as of late September, was pending in the Senate. Labor, Health and Human Services, Education, Defense, State, Foreign Operations, and Energy and Water Development Appropriations Act, 2020, H.R. 2740, 116th Cong. § 9025 (2019) (text as engrossed in the House on June 19, 2019); U.S. Congress, All Actions H.R.2740 — 116th Congress (2019–2020), at https://www.congress.gov/bill/116th-congress/house-bill/2740/all-actions?q=%7B%22search%22%3A%5B%22H.R.+2740%22%5D%7D&s=7&r=1 [https://perma.cc/RG6W-6WLP].

U.S. Supreme Court Denies Certiorari in Habeas Case Brought by Guantánamo Bay Detainee Challenging His Continuing Detention

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