Supreme Court’s Refusal to Hear Guantanamo “Forever Prisoner’s” Appeal Highlights Need to Repeal AUMF

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The Supreme Court refused to hear an appeal last week from one of Guantanamo Bay’s forever prisoners, Moath Hamza Ahmed al-Alwi. Al-Alwi has been detained at Guantanamo for 17 years without charges. The appeal from Al-Alwi challenged whether the provisions under the Authorization for Use of Military Force Against Terrorists (AUMF) that allowed for the military detention of enemy combatants still apply to him.

While 780 prisoners have been held at Guantanamo throughout its operation, there are now 40 prisoners left. Of these 40, 26 are “forever prisoners” who have not been charged with anything but are kept indefinitely on the basis of being too dangerous to release. In additon to the forever prisoners, 9 detainees have been convicted of or charged with war crimes, and five have been recommended for transfer, or cleared for release.  

In 2004, the Supreme Court decided Hamdi v. Rumsfeld, a major legal challenge to military detention with implications for Guantanamo.The court made a conditional decision that people deemed “enemy combatants” could be detained by the military, but US citizens had to have a limited form of due process to challenge their detention. A case also in 2004, Rasul v. Bush, decided detention of non-US citizens at Guantanamo was also subject to judicial review.

Following the court’s refusal to hear Al-Alwi v. Trump, Justice Stephen Breyer penned a statement outlining a critique of “perpetual detainment” under the AUMF. The statement calls for the Court to “confront the difficult question left open by” Hamdi v. Rumsfeld. Detention under the AUMF rests on there being a continued conflict. In the context of the “War on Terror” continued conflict has become vague enough that a so-called “enemy combatant” can be held on the basis of the US still engaging in conflict under the 2001 AUMF.

The AUMF was passed in 2001 following the 9/11 attacks. Section 2 allows for the President to ” use all necessary and appropriate force against those nations, organizations, or persons… in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” This was used as pretext to wage war against Al-Qauda and other terrorists for the last 17 years, creating what have become endless wars. According to the Congressional Research Service, the AUMF has been used to justify 41 Military Operations in 19 Countries. The AUMF has been used to justify military action against ISIS, which did not exist when the AUMF was passed. It was also used as justification when detaining a US citizen suspected of being an ISIS member. This raised controversy on the extent to which the AUMF can be used to justify military action that bears little resemblance to 17 years ago.

Recently, the AUMF has once again become a renewed source of controversy.  Following a dubious claim that Iran attacked a Japanese tanker, the Trump administration has been laying the groundwork for potential military actions. Secretary of State Mike Pompeo claimed that the AUMF could be used to justify a war with Iran, and recent reports suggest the US might attack Iranian nuclear facilities as retaliation.

Under President Bush and Obama, the administration pushed to interpret the powers of the AUMF as nearly all encompassing, an argument that the Trump administration seems keen on advancing now. In response to the seemingly endless AUMF, the only member of Congress to vote against the AUMF in 2001, Rep. Barbara Lee (D-CA) has introduced a bill that would repeal the AUMF.

Breyer raised the important question of rolling back the powers of the AUMF. In an upcoming minibus bill, a longtime opponent of the AUMF, Barbara Lee, has introduced an amendment to repeal the AUMF. A major step toward ending endless wars and forcing the issue of the “forever prisoners” would be repealing.