After the Supreme Court shot down an appeal from one of the few remaining captives in America’s military prison in Guantanamo Bay, one justice has broken ranks and questioned the ongoing policy of indefinite detention.

Though the court on Monday refused to hear an appeal from Moath Hamza Ahmed al-Alwi, a Yemeni man captured by American forces and transferred to the infamous prison in 2002, Justice Stephen Breyer said US detention practices deserved reevaluation.

“In my judgment, it is past time to confront the difficult question left open” by previous Supreme Court rulings, Breyer said in a statement, adding the court should soon decide “whether, in light of the duration and other aspects of the relevant conflict... the Constitution permits continued detention.”

Justice Breyer dissents from the denial of cert in GTMO case raising the question of whether the armed conflict with the Taliban and al-Qeada are still ongoing (and still justify the detention under the laws of war) pic.twitter.com/lhbDz9OKJW — Bob Loeb (@BobLoeb) June 10, 2019

In his failed appeal, Al-Alwi hoped to challenge the open-ended Authorization for Use of Military Force (AUMF) passed by Congress in the wake of the September 11, 2001 attacks, which provides an ostensible legal basis for his confinement over nearly two decades.

Previously, the court avoided answering questions about the constitutionality of unlimited detention under the AUMF, paving the way to the current predicament.

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Some commentators welcomed Breyer’s proposal, but criticized the justice for his role in creating the legal ambiguity around the practice in the first place.

“I respect Breyer's Guantanamo opinion today, but perhaps he should've considered this problem before he cast the fifth vote in Hamdi permitting the government to detain ‘enemy combatants’ for the ‘duration of the relevant conflict’ without trial,” tweeted Slate’s Mark Stern, referring to a 2004 Supreme Court case.

I respect Breyer's Guantanamo opinion today, but perhaps he should've considered this problem before he cast the fifth vote in Hamdi permitting the government to detain "enemy combatants" for the "duration of the relevant conflict" without trial. https://t.co/4sXG1Z1ha5 — Mark Joseph Stern (@mjs_DC) June 10, 2019

The 2001 AUMF has been interpreted to grant broad war-making powers to the president, allowing the military to pursue al-Qaeda and “associated forces” virtually anywhere on earth, and to detain "enemy combatants" without limit.

Since 2001, the AUMF has been used to rubber-stamp military action at least 37 times in 14 countries, according to the Congressional Research Service, and has allowed for the indefinite detention of dozens of ‘enemy combatants.’ Some, like al-Alwi, have been held for nearly two decades. Of the 40 prisoners left at Guantanamo, only nine have been charged with a crime.

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