USSC Turns Down Gitmo Detainee Request for Release Held Since December 2001

Detainee Release from Gitmo in Twilight Zone

(Issue More Gray than Black & White)

WASHINGTON (Huff Post from Reuters) ― The U.S. Supreme Court has declined to wade into the contentious question of to what extent or whether detainees held at the Naval Base Detention Center, Guantanamo Bay, Cuba can seek their release. 

The high court turned away an appeal by a Yemeni-born detainee named Moath Hamza Ahmed al-Alwi, who was captured in Pakistan in December 2001 and detained without charge ever since 2002 in Gitmo. 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.

Ruling: Justice Stephen Breyer, one of the court’s four liberals, issued a statement saying that the court should weigh in on the issue at some point to decide “whether, in light of the duration and other aspects of the relevant conflict, Congress has authorized and the Constitution permits continued detention.”

Al-Alwi “faces that real prospect that he will spend the rest of his life in detention based on his status as an enemy combatant a generation ago,” Breyer added.

Al-Alwi, born in 1977 and now is in his early 40’s, 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 DC Circuit rejected his claims.

Deep Background: The Supreme Court heard several Gitmo cases soon after the conflict began, but the last ruling came in 2008. The court ruled that the prisoners had a legal right to go before a judge in challenging the legality of their detention and to seek their release. In the past decade, the court has repeatedly rejected subsequent appeals from detainees.

History on the term “enemy combatant” – an enemy combatant is a person either lawfully or unlawfully and who directly engages in hostilities for an enemy state or non-state actor in an armed conflict.

Prior to 2008, the definition was: “Any person in an armed conflict who could be properly detained under the laws and customs of war.”

In the case of a civil war or an insurrection the term enemy state may be replaced by the more general term “Party to the conflict” (as described in the 1949 Geneva Convention Article 3).

After the September 11 attacks, the term enemy combatant was used by the George W. Bush administration to include an alleged member of al-Qaeda or the Taliban being held in detention by the U.S. government as part of the war on terror.

In that sense, enemy combatant actually refers to persons the United States regards as unlawful combatants, a category of persons who do not qualify for Prisoner-of-War status under the Geneva Conventions. However, unlike unlawful combatants who qualify for some protections under the Fourth Geneva Convention, enemy combatants, under the Bush administration, were not covered by the Geneva Convention.

Thus, the term “enemy combatant” now has to be read in context to determine whether it means any combatant belonging to an enemy state or non-state actor, whether lawful or unlawful, or if it means an alleged member of al-Qaeda or of the Taliban being detained as an unlawful combatant by the United States.

On March 13, 2009, the President Obama announced the abandonment of the term, and On March 13, 2009, former AG Erick Holder issued a statement that the United States had abandoned the Bush administration term.

The statement further said: “As we work toward developing a new policy to govern detainees, it is essential that we operate in a manner that strengthens our national security, is consistent with our values, and is governed by law.” 

Various human rights groups noted it was primarily a symbolic act. 

My 2 cents: Just imagine an American POW still in custody in North Vietnam today? 

Related from the NYTimes: 40 detainees remain at Gitmo out of roughly 780 detainees held there since 2002 – a list is at the link and it has five distinct categories of detainee – check it out.

I say: Give the detainees their “day in court” before a jury. We have danced around this far too long.

We have labeled most at Gitmo as “enemy combatants (criminals in essence),” but recall how we Americans were sickened when North Vietnam called our POWs war criminals. 

Soldiers do commit crimes in uniform, don’t get me wrong, but fighting for your country or cause in war (declared war or not, conventional or not) is not a crime per se. 

We Americans take pride in the word “justice” and therefore, we can get back to that value at Gitmo and yes, there is a very small number there – give them their day in court – even the hard cases – that is justice, too.

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