Detention of POWs and the Forever War

Lines blur.

This is as much an opinion column as a news story.

Bear in mind these folks are all what Darth Cheney, most notorious for his love of torture, used to call "unlawful enemy combatants" solely because they were not wearing the uniform of any national army.

Justice Breyer Raises Specter of Perpetual Detention Without Trial at Guantánamo

The Supreme Court refused to hear the appeal of a man who has been held in wartime detention for 17 years with no end in sight.

The Supreme Court on Monday refused to hear a lawsuit by a Yemeni man who has been held in wartime detention for more than 17 years at the military’s Guantánamo Bay prison, prompting Justice Stephen G. Breyer to warn that the American legal system is on autopilot toward permitting life imprisonment without trial.

“It is past time to confront the difficult question left open by” a 2004 ruling allowing the indefinite detention of Guantánamo detainees captured after the 2001 American invasion of Afghanistan, Justice Breyer wrote in a dissenting opinion.

That difficult question: In a war that effectively has no end, is it lawful to hold a person in perpetual detention, until he dies of natural causes decades after his capture, because he was once part of an enemy force — though never charged with committing a crime?

. . . .

Under the laws of war, to prevent captured enemies from returning to the battlefield, a military can detain them without trial until hostilities end. 

In 2004, the Supreme Court declared it lawful for the Bush administration to hold detainees at Guantánamo in open-ended detention without trial, citing that wartime practice and Congress’s 2001 decision to authorize military force against those responsible for Sept. 11 attacks.

But that practice developed in the context of traditional wars — the type that come to a definitive end after a few years and soldiers stop fighting and go home. 

A war against a loose-knit, evolving and transnational network of Islamist militants is different.

It is not clear anyone has the authority to halt the war declared by Al Qaeda’s founder, Osama bin Laden, and make all its members stop fighting — especially because the network has splintered into associates and successor factions, like the Islamic State, which share Al Qaeda’s ideology but have their own leaders.

Justice Breyer wrote that the Supreme Court should consider whether the legal basis to keep holding a particular person in detention can expire even if the broader conflict continues. 

“Today’s conflict may differ substantially from the one Congress anticipated when it passed” the 2001 force authorization, he wrote.

A lawyer for Mr. Alwi, Ramzi Kassem, a law professor at the City University of New York, called his client’s predicament a “cruel farce” and urged Congress or the executive branch to cap how long someone like his client can be imprisoned.

“That Moath remains behind bars although the courts found no evidence that he ever used arms against the United States shows just how inhumane both the government and the law have become in these cases,” Mr. Kassem said.