June 22, 2019 in News by RBN Staff


FOR OVER 17 years, Moath al-Alwi has been held at Guantánamo Bay without charge. A Yemeni citizen, al-Alwi is one of Guantánamo’s “forever prisoners,” those whom the U.S. government has not charged with a crime but is unwilling to release. On June 10, the Supreme Court declined to hear an appeal in his case, the latest setback in al-Alwi’s long effort to obtain due process rights. Even though the court wouldn’t take al-Alwi up, Justice Stephen G. Breyer wrote that it would only be a matter of time before the court had to grapple with the forever prisoners and the scope of the government’s power to hold them.

The Supreme Court rejection — and Breyer’s comments — briefly brought al-Alwi’s case back to national attention. Little noted, however, were the eyebrow-raising assertions that the government has made in this case about its powers to indefinitely detain not just al-Alwi, but anyone — including U.S. citizens.

“There is no bar to this Nation’s holding one of its own citizens as an enemy combatant.”

In a filing with the Supreme Court this April, lawyers for the Justice Department argued that the United States can continue to hold al-Alwi indefinitely without charging him. They also embraced the power to detain a U.S. citizen as an “enemy combatant”, an assertion they haven’t advanced openly since the era of President George W. Bush. Notably, the lawyers seemed to indicate, for the first time in a filing with the Supreme Court, that the government could even detain a U.S. citizen for as long as it has held al-Alwi, 17 years and counting, without charge.”

“There is no bar to this Nation’s holding one of its own citizens as an enemy combatant,” the filing read. Were al-Alwi a citizen, they argued, he “would pose the same threat of returning to the front during the ongoing conflict.” There were no “constitutional questions” raised by this hypothetical, they maintained.

The continued detention of al-Alwi has been justified by the government under the 2001 Authorization for Use of Military Force, a law passed in the days after 9/11. That AUMF entered the country into a state of war that seems to have no particular endpoint. It has also allowed the creation of a permanent state of legal exception that opens the door to practices like indefinite detention without trial. These legal powers are now being asserted by government lawyers almost 18 years after the law was passed to ensure that they extend even to Americans potentially detained as enemy combatants in the future.