Has the statutory foundation for detention of enemy combatants quietly collapsed thanks to changing circumstances in Afghanistan? Justice Stephen Breyer is urging his colleagues to take up that question. Today they passed on the opportunity, but what if they had not?
Since the first detainees arrived in 2002, the detention camp at Guantanamo Bay has become nearly synonymous with the moral and legal quandaries posed by the “war on terror.” The camp’s location—on the island of Cuba, outside U.S. territory but de facto under total U.S. control—creates ambiguous legal obligations. And after the Bush administration began using the Guantanamo naval base as a place to hold detainees in the “war on terror,” questions soon arose over the use of torture and military commissions, along with the legality of military detention itself. Though President Barack Obama pledged to close the detention center, Guantanamo has proved a difficult knot to unravel: the Obama administration continues to transfer remaining detainee away from the base, but debate continues over when and how Guantanamo will finally be closed.