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Americans Might Be Detained Under This 2002 Law

August 15, 2019 Topic: Security Region: Americas Tags: AUMFWarISISDonald TrumpCongress

Americans Might Be Detained Under This 2002 Law

The Trump administration tried to detain an ISIS sympathizer without trial. Now he’s on the loose, and Congress’s war powers are in question.

The case against John Doe, a thirty-seven-year-old U.S. citizen who was found in the Syrian desert with thousands of dollars in cash and a USB drive full of Islamic State (ISIS) documents, should have been open-and-shut case. But instead of putting him on trial, the Trump administration claimed the authority to indefinitely detain anyone, U.S. citizen or otherwise, who might be a threat to the Iraqi government—all in the name of fighting long-dead dictator Saddam Hussein.

At an August 2019 press conference, State Department Counterterrorism Coordinator Ambassador Nathan Sales called on U.S. allies “to bring [their terrorist suspects] home, put them in front of a court, have them tried, and then if they’re convicted, make sure they serve lengthy sentences.” But last year, his administration successfully fought in court to avoid doing just that and facilitated John Doe’s release.

Congress passed the Authorization for the Use of Military Force (AUMF) against Iraq in 2002, but U.S. government lawyers continue to cite it in court cases related to ISIS suspects, the National Interest has found. The law authorized then-President George W. Bush to “defend the national security of the United States against the continuing threat posed by Iraq,” citing the country’s use of weapons of mass destruction and its alleged support for terrorism.

In February 2018, the Trump administration told a federal court that the seventeen-year-old law is an ongoing mandate to fight and capture any of present-day Iraq’s enemies. Before this sweeping legal claim was put to the test, the case was settled out of court.

During the July 2019 debate over renewing the 2001 AUMF against Al Qaeda, members of the Senate Foreign Relations Committee brought up the fact that U.S. forces are deployed to the Middle East under the 2002 AUMF as well. Sen. Todd Young (R-IN) asked whether the AUMF against Iraq is still necessary, given that the current Iraqi government is a U.S. partner against ISIS.

“There has been some recent litigation involving some novel detainee issues in which we as an administration have asserted three different legal bases: Article II of the Constitution, the 2001 AUMF, as well as the 2002 AUMF,” State Department Acting Legal Advisor Marik String responded. He claimed that he could name “specific cases where we think we need that extra authority,” but none where the U.S. government was using the 2002 AUMF alone.

A State Department official told the National Interest that the “recent litigation” in question is Doe v. Mattis, a federal lawsuit filed in Washington, DC by the American Civil Liberties Union (ACLU) on behalf of a U.S. citizen and alleged ISIS fighter captured in Syria by the U.S. military in September 2017.

“John Doe,” who the New York Times later identified as the Saudi-American college dropout Abdulrahman Ahmad Alsheikh based on captured ISIS documents, allegedly traveled from Louisiana in July 2014 to fight in the Syrian Civil War. Three years later, he was arrested at a checkpoint by Syrian Democratic Forces (SDF) during the Battle of Deir ez-Zor, and handed over to the U.S. military.

Alsheikh claimed he was a freelance journalist, but the SDF said he was carrying scuba gear, a GPS tracker, $4,280 in cash, and a USB stick that the FBI later said was filled with bomb-making instructions and human resources paperwork from ISIS. Instead of handing him over to domestic authorities for trial, however, the U.S. military moved Alsheikh to an undisclosed facility in Iraq. After learning in October 2017 that the U.S. military was holding an American citizen in Iraq, the ACLU filed a writ of habeas corpus, demanding that “John Doe" have access to a lawyer and a fair trial.

Calling ISIS “a group that did not exist at the time of the 9/11 attacks, that is distinct from al-Qaeda, and that has, in fact, opposed al-Qaeda,” the ACLU claimed that the 2001 AUMF does not authorize Alsheikh’s detention as a prisoner of war.

The Department of Defense initially asked to dismiss the case, claiming that it would be a “security risk” to allow “John Doe” to contact a lawyer, or even to disclose his name to the ACLU. The U.S. District Court for the District of Columbia allowed the case to move forward, forcing the Trump administration to defend not only Alsheikh’s detention, but also its war powers in the fight against ISIS.

Department of Justice lawyers made the obvious argument that ISIS is “a hostile organization that has both inspired and aided attacks on United States soil and that has attacked U.S. military forces overseas,” allowing the president to fight the group and capture its members as commander-in-chief of the Army and Navy, under Article II of the U.S. Constitution. They also defended the idea that ISIS “was founded and led by associates of Osama bin Laden, was al-Qaida’s official affiliate in Iraq, was publicly allied with al-Qaida until recently, and now claims to be the true successor of the man who directed the 9/11 attacks,” and is therefore covered by the 2001 AUMF.

But the Department of Justice made an unexpected legal move in a February 2018 court filing obtained by the National Interest. The government’s lawyers argued that the 2002 AUMF “provides legal authority for military operations against [ISIS] in Iraq and, in some circumstances, against [ISIS] in Syria” because it “authorizes the use of force both to help establish a stable, democratic Iraq to succeed Saddam Hussein’s regime by addressing threats to Iraq, as well as using for to [sic] address terrorist threats emanating from Iraq.”

The filing said that Congress’s continued funding for military operations in Iraq “confirm[s] that the campaign is authorized by the 2001 AUMF and, in certain circumstances . . . the 2002 Iraq AUMF.”

The Trump administration was claiming that it had a congressional mandate to capture anyone who might pose a threat to the post-Saddam Hussein order—without an expiration date. The United States does not have a formal treaty of alliance with the Republic of Iraq.

“These claims are not supported by the text of either AUMF, and are expansively dangerous because they seek to cut Congress out of one of its major powers, which is the authority to declare when the United States can lawfully engage in war abroad,” said Hina Shamsi, director of the ACLU’s National Security Project and one of the lawyers for John Doe, in a statement to the National Interest. “The government has claimed extremely broad and untenable authority to wage war under decades-old statues and its own executive power, including to detain a U.S. citizen in Iraq.”

Neither the Department of Justice nor the Department of State responded to a request for comment on the filing.

A hearing later that month hinted at how using the 2002 AUMF may have benefited the Trump administration’s plans. When the ACLU asked for an injunction stopping the military from transferring Alsheikh to the jurisdiction of an unnamed third country, Department of Justice attorney James Burnham let slip that Iraq had a “legitimate interest” in taking custody of Alsheikh.

In a newly unsealed May 9, 2018, ruling, a DC appeals court refused to make “a determination that the Executive has legal authority to wage war against [ISIS].” This ruling didn’t touch the question of whether it is legal to fight ISIS but limited the military’s authority to hand over Alsheikh or other Americans accused of supporting ISIS to another country’s authorities without trial.

An ACLU source with intimate knowledge of the case said that Iraq was not the unnamed government that the military was planning to transfer Alsheikh to. But in June 2018, the U.S. government openly attempted to “release” Alsheikh back into SDF-held territory in Syria. Around the same time, France was arranging for the SDF to hand over French members of ISIS to Iraqi courts, which sentenced many of them to death.

“They're dropping him in a war zone without an ID. It's dangerous to go if you haven't been branded an enemy combatant and you have a passport. He's being dropped there, after being targeted as an enemy combatant in Syria, without any ID,” Jonathan Hafetz, one of the ACLU’s lawyers, told the court at the time, arguing that it would certainly lead to Alsheikh’s arrest. “[The U.S. military] couldn't even release a suspected North Vietnamese soldier in Saigon.”

The ACLU claimed that SDF soldiers had “hit [Alsheikh] in the head, back, and stomach. As a result, [Alsheikh] suffered severe bruising and dizziness” during his detention in September 2017. “On one occasion, a member of the SDF grabbed [Alsheikh] around the throat, held him up against a wall, and threatened to break his neck.”

Burnham denied these claims before the court, calling the SDF “a reliable, modern military force” and “a trusted local partner that the U.S. military is very familiar with” that has been “vetted for compliance with the law of war, humanitarian treatment, and the like.”

“We appreciate [America’s] role in taking responsibility of captured ISIS fighters and we wish other countries will follow suit and establish a tribunal for captured ISIS fighters,” said Bassam Ishak, the SDF’s diplomat in Washington, in a statement to the National Interest. “About eleven thousand of our young men and women died to defeat ISIS and protect the world from terrorism and now we need the international community to step in and [set up] a formal tribunal for captured terrorists in Syria.”