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Writing the next detainee appeal

Picking up on thoughts from a lower federal court judge, Supreme Court Justice Stephen G. Breyer on Monday sketched the outlines of an issue that could be the basis for a new challenge to long-term detention by those held at Guantanamo Bay, Cuba.  The thrust of it would be an individual’s claim that he actually never engaged in armed hostilities against the U.S. or its allies overseas.

Breyer spoke out in a separate opinion, representing so far only his own views, as the Court denied review of the case of a Yemeni national who has been held at Guantanamo for nearly twelve years; Abdul al Qader Ahmed Hussain was captured in Pakistan in March 2002 when he was eighteen years old.  (The case was Hussain v. Obama.)

Breyer joined in the denial order because, he said, Hussain’s lawyers had not raised “unanswered questions” that may have arisen over his detention.  The fact that even one Justice spoke out on the case was unusual; with only one exception, that has not happened in the nearly six years since the Court last issued a major ruling on the legal rights of Guantanamo detainees.  Multiple appeals by detainees have simply been denied without any comment.

The Court, Justice Breyer wrote, “has not directly addressed” whether the Constitution and the 2001 law authorizing detention of terrorism suspects allows “detention on the basis that an individual was part of al Qaeda, or part of the Taliban, but was not ‘engaged in armed conflict against the United States’ in Afghanistan” before an individual was captured.

Even assuming that detention based only on affiliation with those organizations is permissible, Breyer went on, there is a question whether the time that an individual can be detained is limited by either the Constitution or the 2001 law.

A federal district court in Washington, D.C., and the U.S. Court of Appeals for the District of Columbia Circuit had ruled that Hussain’s detention was valid, finding that he had been part of al Qaeda or of the Taliban when he was captured.

The key finding against Hussain was that, for a period of ten months, he lived near battlefields in Afghanistan, staying with warriors of the Taliban movement, who gave him an automatic rifle and taught him how to use it.  That evidence, those courts concluded, supported the government’s argument that he had been a part of al Qaeda or of the Taliban.

Senior Circuit Judge Harry T. Edwards, while going along with the result in the case because he said it was dictated by the D.C. Circuit’s precedents, wrote that there was nothing in the record of the case to show that Hussain “used the weapon for any purpose,” nothing to indicate that he ever carried the gun with him, “nothing to indicate that he ever engaged in any acts of war or terrorism” while living near an Afghan battlefield, and “no evidence that Hussain ever engaged in any acts of war or terrorism.”

Judge Edwards appeared to be concerned about basing prolonged detention at Guantanamo on an individual’s membership in al Qaeda or the Taliban, without becoming directly engaged personally in armed hostilities.

But Hussain’s lawyers did not frame their appeal of his case to the Supreme Court around that question.  Instead, they asked the Court to rule on whether the lower courts were applying the correct legal standard in judging detention, and whether lower courts had wrongly shifted to him the burden of showing that he was not a part of either of those terrorist groups at the time of his captured in 2002.

Justice Breyer, though picking up on the observations of Judge Edwards, did not urge the Court to hear Hussain’s petition because it had not based its challenge on an alleged lack of waging war against the U.S. or allies.

Under precedents set by district judges in Guantanamo Bay cases, a detainee like Hussain is allowed to file a new court challenge to detention if new facts or new legal developments appear.  Thus, his lawyers could start their case all over again, seeking to focus it where Judge Edwards and Justice Breyer had seemed to invite.




Recommended Citation: Lyle Denniston, Writing the next detainee appeal, SCOTUSblog (Apr. 21, 2014, 4:04 PM),