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.
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.
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