For what feels like the first time in forever, a Justice actually weighed in on the situation in Guantanamo. In a statement respecting denial of certiorari in ABDUL AL QADER AHMED HUSSAIN, PETITIONER v. BARACK H. OBAMA, PRESIDENT OF THE UNITED STATES, Justice Breyer alone wrote to stress that just because someone was part of Al Qaeda or the Taliban does not mean they were actually “engaged in an armed conflict against the United States.”

In this case, the District Court concluded, and the Court of Appeals agreed, that petitioner Abdul Al Qader Ahmed Hussain could be detained under the AUMF because he was “part of al-Qaeda or the Taliban at the time of his apprehension.” 821 F. Supp. 2d 67, 76–79 (DDC 2011) (internal quotation marks omitted; emphasis added); accord, 718 F. 3d 964, 966–967 (CADC 2013). But even assuming this is correct, in either case—that is, irrespec- tive of whether Hussain was part of al Qaeda or the Tali- ban—it is possible that Hussain was not an “individual who . . . was part of or supporting forces hostile to the United States or coalition partners in Afghanistan and who engaged in an armed conflict against the United States there.” 542 U. S., at 516 (emphasis added).

The Court has not directly addressed whether the AUMF authorizes, and the Constitution permits, deten- tion 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.

In other words, Breyer would expand the inquiry. No longer would it be enough for the government to prove they were part of these groups. Now, it would need to be shown that they took up arms. Note no one else joined Breyer here.