Justice Breyer’s Concurrence in Hussain

As Marty predicted back in March, the Supreme Court’s denial of certiorari this morning in the latest Guantánamo case to reach the Court–Hussain v. Obama–came with a one-Justice statement concurring in the denial, penned by Justice Breyer (see the last two pages of this PDF). Specifically, Justice Breyer wrote separately to note that:

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.

Nevertheless, although “[t]he circumstances of Hussain’s detention may involve these unanswered questions,” Breyer demurred because “his petition does not ask us to answer them.”

Both Marty and I have explained at some length previously just how little is actually resolved by the Supreme Court’s interpretation of the AUMF in Hamdi, and how much has instead been filled in by the D.C. Circuit–including the answers to both of Justice Breyer’s questions in Hussain. (In a nutshell, “yes,” and “no”.)  And the Court has seemed content, thus far, to leave virtually all of those decisions intact, notwithstanding fairly compelling arguments to the contrary. But perhaps Justice Breyer’s statement today is a sign of shifting winds–and the very real possibility that the Court is not in fact done passing upon the complex legal questions arising out of the continuing detentions at Guantánamo… 

About the Author(s)

Steve Vladeck

Co-Editor-in-Chief of Just Security and Professor of Law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).