The Future of AUMF and Guantanamo Detainees: Did Justice Breyer Just Push the Argument Forward?

The president’s authority in war-making power and detention of enemy combatants has been a hotly contested issue for some time and many lawmakers are looking to either repeal or revise (not renew) the Authorization to Use Military Force (AUMF).  The drawdown of troops in Afghanistan raises questions over the applicability of AUMF and its sunset.  There are currently 150 Guantanamo prison detainees in limbo with no charges filed and no trials set to take place any time soon.

Justice Stephen Breyer, in a short opinion at the end of the April 18 order list, weighed-in on the issue of AUMF’s applicability and the potential future of detainees in Guantanamo.  The Supreme Court denied to hear the case Abdul al Qader Ahmed Hussain v Obama for what Breyer described as the Court not directly addressing, “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.”

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