Marty Lederman on Justice Breyer's Hussain Opinion

As Justice Breyer notes . . ., the Supreme Court has never actually opined on whether being a member of Taliban forces, standing alone, is sufficient for AUMF detention.  Justice O’Connor’s controlling plurality opinion in the leading case, Hamdi v. Rumsfeld, held only that the AUMF authorized military detention of (in her words) “an individual who . . . was part of or supporting forces hostile to the United States or coalition partners in Afghanistan and who engaged in an armed conflict against the United States there” (emphasis added).

Thus, in his statement in Hussain, Justice Breyer writes the following:

The Court has not directly addressed whether the AUMF authorizes, and the Constitution permits, detention on the basis that an individual was part of al Qaeda, or part of the Taliban, but was not “engaged in an armed conflict against the United States” in Afghanistan prior to his capture. Nor have we considered whether, assuming detention on these bases is permissible, either the AUMF or the Constitution limits the duration of detention.

Each of these two sentences is, in effect, an invitation to habeas counsel to begin to stress arguments that have not thus far been at the heart of the GTMO litigation.

The latter sentence, of course, harkens back to Justice O’Connor’s own, similar signal in Hamdi about whether the AUMF detention authority might lapse at some future time.  She wrote there that if “the practical circumstances of a given conflict” become “entirely unlike those of the conflicts that informed the development of the law of war,” the Court’s understanding of when detention is a “necessary and appropriate” use of force “may unravel” . . .  but she also indicated that that question would not arise where “[a]ctive combat operations against Taliban fighters . . . are ongoing in Afghanistan.”

It’s fair to assume that when such active combat operations in Afghanistan do cease in the near future, and/or if and when the U.S. concludes that al Qaeda’s capabilities have been sufficiently degraded so that it is no longer a continuing threat to strike the U.S., attorneys for the GTMO detainees will begin to more strenuously press the argument that the continued detention of Taliban and al Qaeda forces is no longer necessary and appropriate, on the theory that there will be no “battle” to which the detainees might return.  (Justice Breyer intriguingly suggests that such a claim might be based upon the Constitution, even if the detainee is an alien, and even if the AUMF continues to authorize detention.  He does not elaborate on what the constitutional argument would be, however.)

Justice Breyer’s other sentence is more provocative and novel, inviting an argument that has not thus far been at the heart of the GTMO litigation.   He suggests that perhaps counsel ought to consider arguing that proof of membership in al Qaeda or Taliban forces is not enough to trigger AUMF authority to detain — that perhaps the government might also need to show that the individual “engaged in an armed conflict against the United States” (or perhaps even, narrower still, that he engaged in such an armed conflict in Afghanistan).

This seems exactly right to me. I find it inconceivable that there are five votes on the Supreme Court for a requirement for detention that an Al Qaeda member have actually engaged in combat. But I think the continued vitality of the AUMF as an instrument authorizing detention after the drawdown and the end of major combat operations in Afghanistan is going to be the next great front in the Guantanamo cases. I also think it's likely to be the issue that's finally going to get the Supreme Court focusing on detention once again.

Stay tuned next year.