Justice Sonia Sotomayor pursued the point. “Are you going to let him testify as to what happened to him?” she asked.
Mr. Fletcher would not give a direct answer. “I’m not prepared to make representations for the United States, especially on matters of national security,” he said.
But he promised to give the court a more considered response, presumably in a letter, after consulting with other government officials.
Justice Gorsuch seemed exasperated by the government’s position.
“This case has been litigated for years and all the way up to the United States Supreme Court,” he said, “and you haven’t considered whether that’s an off-ramp that the government could provide that would obviate the need for any of this?”
Justice Brett M. Kavanaugh, participating in the argument remotely after testing positive for the coronavirus last week, asked the last question, and it was an even more fundamental one. It concerned the status of the 2001 law that approved going to war against those responsible for the Sept. 11 terrorist attacks, the Authorization for Use of Military Force, or A.U.M.F.
“Is the United States still engaged in hostilities for purposes of the A.U.M.F. against Al Qaeda and related terrorist organizations?” he asked, seeking to get at whether the United States still has a basis for holding Abu Zubaydah.
Mr. Fletcher said yes. “That is the government’s position,” he said, “that notwithstanding withdrawal of troops from Afghanistan, we continue to be engaged in hostilities with Al Qaeda and therefore that detention under law of war remains proper.”