The United States Supreme Court refused to hear a case brought by a Guantanamo Bay captive against his perpetual detention, even though the war in which he was captured has shifted dramatically and still has no end in sight.

Moath Hamza Ahmed al-Alwi was detained in Afghanistan and sent to Guantanamo about 17 years ago. He is a Yemeni national.

According to his attorney, Ramzi Kassem, courts found al-Alwi never “used arms against the United States or its coalition partners or that he had anything to do with 9/11 or other attacks against the United States.”

There are forty individuals at Guantanamo, who are effectively “forever prisoners,” because President Donald Trump’s administration maintains an “expansive view” that they have detention authority.

Justice Stephen Breyer filed an opinion that reflected his viewpoint on the decision to reject the case.

“Al-Alwi faces the real prospect that he will spend the rest of his life in detention based on his status as an enemy combatant a generation ago, even though today’s conflict may differ substantially from the one Congress anticipated when it passed the [Authorization for Use of Military Force], as well as those ‘conflicts that informed the development of the law of war,’” Breyer stated.

Breyer suggested it was past time for the Supreme Court to resolve the question of whether the AUMF or the Constitution permits the executive to perpetually detain an individual for the duration of the “war on terrorism.”

The U.S. government “wrongly categorized” al-Alwi as a “Taliban or al Qaida fighter based on flimsy evidence that courts of law would not credit under ordinary standards of proof,” according to Kassem. They permitted “inferences (if not irrebuttable presumptions) from potentially innocuous acts, such as brief stays at guest houses that the military associated with the Taliban or al Qaida.”

Kassem maintains most of the “chief evidence” against al-Alwi comes from “unreliable interrogation reports and that he was abused, threatened, and humiliated throughout the period these statements were reported.”

Because appeals courts have granted the executive nearly unfettered authority to define the conflict, individuals like al-Alwi remain at Guantanamo.

In 2018, the Center for Constitutional Rights filed a lawsuit on behalf of 11 individuals after Trump proclaimed that he would not allow the release of any captives from Guantanamo.

“The government says my detention is legal because of the indefinite war against terrorism. When terrorism ends, the war will end. So, never,” said Sharqawi Al Hajj, a 43 year-old Yemeni who CCR represents, and. “Even though I expected such a response, I was still shocked at the idea that I am such a threat that the government wants to keep me here at a cost of millions every year.

Al-Hajj has been detained without charge since 2002. “Let’s even assume I did wrong 17 years ago, but that I want to change and have changed. Where is there room for that? The government doesn’t want to hear about it.”

According to CCR, al-Hajj suffers from “physical and psychological effects of torture, which have never been evaluted by an independent physician.” He has resorted to hunger strikes while struggling with grave conditions that complicate his health during his indefinite detention. One outside medical assessment suggested last year that he may be close to “total bodily collapse.”

Reprieve represents Towfiq Bihani and Abdullatif Nasser. They have represented them to challenge perpetual detention, hoping the Supreme Court would take their cases and resolve this critical issue.

“Keeping these men behind bars forever, when the government’s own investigators have determined that they committed no crime and pose no threat, is a shocking violation of the USA’s founding principles,” declared Shelby Sullivan-Bennis, a legal counsel for Reprieve. “Guantánamo Bay is a global symbol of injustice.”

Yet, there is no interest on the part of Congress to address these human rights concerns. If anything, there is bipartisan support for keeping them indefinitely, which puts little pressure on the Supreme Court to take a case that may require them to check the power of the executive in some meaningful way.