Why the U.S. War on ISIS Is Illegal

The United States’ war with al-Qaida has gone on so long, and has metastasized into so many different uses of U.S. armed forces around the globe, that it may be surprising to learn that the federal courts have only addressed the legality of a very small piece of it.

After the 9/11 attacks, Congress passed a statute authorizing the executive branch to use military force against those groups directly connected to the attacks: al-Qaida and the Taliban. But today, the United States claims the authority to use armed force under that statute not just in Afghanistan, but also in Iraq, Yemen, Somalia, Pakistan, and Syria — against not just al-Qaida and the Taliban, but also al-Qaida in the Arabian Peninsula, al-Shabab in Somalia, and now the Islamic State in Iraq and Syria, or ISIS.

But no court has ever addressed the government’s legal justifications for military action in so many different parts of the world. Now, in a case brought by the ACLU, one court will. The federal district court in Washington, D.C., will address whether the executive branch can use its elastic and open-ended assertion of wartime authority to imprison indefinitely an American citizen with no connection to 9/11.

In September 2017, Kurdish forces detained an American citizen in Syria and quickly transferred him to U.S. custody. On Sept. 14, the Daily Beast reported the detention, and the government confirmed it was holding the citizen as a “known enemy combatant” for ISIS. For weeks, the government refused to reveal any public details about the detention, to bring that person before a judge, or charge him with a crime. The ACLU went to court on the unnamed citizen’s behalf, demanding that the government justify his detention to a federal court. Since the court ruled in December that the government must allow the ACLU to meet with the citizen, we have represented him as our client.

Weeks ago, the government filed — under seal, and not available to the public — its legal and factual reasons for holding the citizen without charge or trial. (It will be filing a public, partially redacted version soon.) Today, the ACLU filed a response, explaining why under the Constitution and laws of the United States, the government lacks the authority to continue holding our client as a military detainee.

At this stage, our client is challenging only the government’s arguments concerning its legal authority to detain him assuming that he was a member of ISIS at the time of his detention. While that accusation is simply wrong — our client was actually kidnapped and imprisoned by ISIS, tried to escape, and never took up arms against the U.S. or anyone else — a detailed refutation of the government’s allegations will come at a later stage, if necessary. At this stage, because the government has not filed any criminal charges against him, litigating the government’s accusations would prolong his unlawful detention and strip him of the safeguards afforded by criminal court proceedings.

The government’s arguments regarding its legal authority to detain our client are breathtaking in their scope.

First, the government claims that a 2001 statute, the Authorization for Use of Military Force, gives it the power to detain our client. But that statute, which was passed in the days following 9/11, expressly limited its authorization of force to those responsible for the attacks — in other words, al-Qaida and the Taliban. Moreover, when Congress gave that authority to President Bush, it rejected the executive branch’s attempts to convince Congress to grant it open-ended authority to take military action against future threats without returning to the legislative branch.

Even so, the government now claims that the 16-year-old AUMF authorizes the detention of a U.S. citizen who is totally unconnected to the 9/11 attacks, al-Qaida, or the Taliban. It does so by attempting to draw a daisy-chain of connections between al-Qaida in Afghanistan and a terrorist group founded in 2003 in Iraq called Jam’at al-Tawhid wa’al Jihad, which later renamed itself al-Qaida in Iraq. The government says that the Iraqi group was started by an “associate” of Osama bin Laden, “aligned” with al-Qaida sometime after 2003, and then effectively morphed into ISIS around 2006. According to the government, the 2001 AUMF covers ISIS because, more or less, ISIS is al-Qaida.

The government’s argument falls apart on examination. In determining whether detention is lawful under the 2001 AUMF, the courts have thus far looked only to whether that detention was lawful at the time of capture. Whatever relationship al-Qaida had with ISIS was torn asunder in 2014, and now the two groups are in open armed conflict with each other in Syria. The government’s allegations against our client, who was captured in September 2017, thus fall nowhere near the scope of the 2001 AUMF.

The government also claims two other sources for its detention authority. First, it construes a 2002 Authorization for Use of Military Force against the Saddam Hussein regime in Iraq as authorizing detention to combat any and every threat emanating from Iraq, effectively indefinitely. But the 2002 statute does not remotely allow such an extension — and in 2014, the government openly abandoned all reliance on it.

Second, the government reprises one of the most extreme arguments of the Bush administration: that the president has inherent authority as commander-in-chief to detain U.S. citizens, anywhere and everywhere, as he sees fit. No court has ever suggested, let alone held, that the president has unilateral authority to imprison an American citizen without trial — unless Congress suspends habeas corpus (the legal right to be brought before a judge to challenge the legality of one’s detention) which, of course, it has not done.

Our client’s case will be the first time the government’s theory concerning its ability to use force against ISIS gets tested in court. When the Obama administration first announced that it claimed such authority in 2014, responses across the political spectrum were scathing. Jennifer Daskal, who had served in the Justice Department in that administration, wrote that “re-interpretation of laws in totally implausible ways shakes the principles of legality at its core.” Jack Goldsmith, who worked in the Bush Defense and Justice Departments, called the theory “breathtaking,” explaining that if ISIS’s “remarkably loose affiliation with al Qaeda brings a terrorist organization under the 2001 law, then Congress has authorized the President to use force endlessly against practically any ambitious jihadist terrorist group that fights against the United States.”

As the Supreme Court has famously said, Congress does not “hide elephants in mouseholes.” It certainly did not hide an extraordinary authority to engage in indefinite and limitless global war in legislation explicitly tied to a single terrorist attack 16 years ago.

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Anonymous

African-Americans, environmentalists and Tea Party folks should be the most concerned about any U.S. citizen being denied charge or trial as guaranteed by our Bill of Rights. Think Guantanamo and the "War on a Tactic" after 9/11 don't affect you - it does in big ways!

Nobody knows what the truth is - until we go through an adversarial discovery process where the "accusers" testify (under a healthy risk of perjury and obstruction justice-this burden is the most vital part), then the "accused" has access to legal counsel and all evidence to deny or clarify accusations in a very timely manner. Waiting years or decades to go to trial destroys material evidence and witness testimony. It also requires a real Article III court, not a Kangaroo FISA court.

We may want to remember that sometimes the U.S. Government lies and even fabricates evidence out of whole cloth (ie: Tonkin Gulf, Watergate, Cointelpro used against African-American Christian ministers advocating voting rights, Fred Hampton assassination by the FBI, etc).

As the great Martin Luther King, Jr. warned "An Injustice anywhere is an Injustice everywhere". There is not a separate justice system for foreign suspects. Once you pervert and contort the Justice System, it poisons the domestic justice systen as well.

Except for the Richard Jewel case in the 1990's - where the FBI destroyed an innocent man that resulted in premature death of an innocent man - the term "Person of Interest" instead of the constitutional standard of "suspect" or "accused"" was rarely used before 9/11. The Bush Administration then enacted an unconstitutional "Preemption Doctrine" that turned the Constitution upside down. "Person of Interest" means more doubt and less evidence than the "suspect" standard.

As a result, today we have legalized "fishing expeditions" without amending the U.S. Constitution. What started as OBL now has mission-creeped to law enforcement officers policing legal First Amendment exercises by American citizens on Facebook, Twitter, etc. Today you can be investigated, blacklisted and defamed FOR LIFE for a non-crime or non-wrong doin. Many officials view legal First Amendment activity - which they took an oath to protect - as a crime or wrong doing today.

Recent reports by the Brennan Center say that righy-wing groups have committed more terrorism than foreign Muslim groups. Even if you support this effort, history has shown African-Americans, Jews, immigrants and other minorities are disproportionately harmed when the U.S. Government abandons the constitutional "rule of law".

Since we have still not overturned the unconstitutional "Bush Preemption Doctrine" - if you were targeted or harmed, you may never know about it - it's covert. The IRS has publicly admitted to targeting political groups from both the right and left - as a consequence of legal First Amendment activity - not based on any wrong doing. Attorney General Ashcroft was severely corrected by a federal court for illegally destroying U.S. citizens using the federal "Material Witness Statute" - he used it as a quasi form of imprisonment without charge or trial.

If you claim to be a Law & Order type, it should concern you that it requires a "constitutional amendment" for judges to change the letter & spirit of any constitutional right. Agree or not, legally it requires amending the U.S. Constitution. We should overturn rulings like "Terry v. Ohio" that violate the Fourth Amendment and overturn unconstitutional executive orders like the Bush Preemption Doctrine. This does affect all of us!

Anonymous

We keep fighting when al Qaeda, or isl, or whatever they want to call themselves , keep rearing their ugly heads. What is it about that that you do not understand?

Anonymous

I for many believe that 9/11 was a false flag attack to get the USA to kill muslims until Isreal feels enough have died
4.5 billion insurance policy was bought by jewish owner and buildings were pulled by demolition experts
Watch the youtube videos and learn
Jewish film crew were dancing with joy as they filmed the demolition! Who acts like that?
isil was created by hillary clinton & obama to fight russians they wanted to keep russia out of area and it backfired !!
Look at syria now! Asad !
Both Bush father & son failed,to make world safe from russia killed billions of people and no evidence Ben Laden did anything so entire war was a true false flag

Matthew Roberts

Is it illegal to hold prisoners of war now? Is he/she ISIS? Would he kill every lawyer that works at ACLU due to not sharing the same religion? Am I posting this on the Onion?

Anonymous

You clearly didn't read the article. He is not ISIS, and is working with lawyer from the ACLU. We don't know if they share the same religion and it likely doesn't matter.

Anonymous

Both sides of this issue simply use technicalities for their arguments, which go no where. The bottom line is to maintain our military positions around the globe, as is needed, to retain an advantage over all other nations, militarily. Only this strategy will ensure our survival as a nation.

Anonymous

Not if were bankrupt, we should be on defence ONLY unless congress declares war.

Anonymous

Our military has determined that our actions in the middle east are justified and the occupation of Afghanistan is necessary in order to retain a strategic advantage to possible threats in the future. What else can we do, except to trust their judgment? They have access to secret info that we don't, and are cognizant of the fact that if a nation is not the strongest in the world they will fall eventually to a stronger country, all history proves this to be true.

Anonymous1

16 years ago? What about Boston? What about attacks on fellow NATO countries.

Ann-Katherine l...

When fdr, Franklin delano Roosevelt was president, and we had to, beat the" German Nazis" , fdr invited the head s of corporations into the White House, so theat we could all join forces and resources to beat the Nazis. The Corporations were supposed to leave The White House after WW2, but the problem is, THEY NEVER LEFT. Unfortunately, fdr passed away while still a sitting President, & The Corporations have never left the white house and it's how The Industrial War Complex, was inadvertently created by accident. While Corporations are using, and abusing The American Peoples Military, as their own Mercenary Force of Arms, abusing and exploiting Our Military for Profit, in illegal "Wars for Profit, & Wars of Agression" this is Highly, Highly Illegal, and violates treaties and International agreements that we are signators to, including The Geneva Convention, causing the murder of American Soldiers, Genicides and Massacres for profit in the munitions and arms Industry, while this racketeering in War, is Criminal and has no lawful presence in any peaceful and sustainable economy and government, these corporations must finally LEAVE THE WHITE HOUSE, or our government has no legitimacy. The only purpose of a Military is to protect it's country & it's people, while being "Shangheid" by corporations for profit in illegal wars, it has "Lost it's purpose" and then, The Military is lost. Hence the suicides of many American Soldiers is caused by this abuse of The Military, for profit by the unlawful presence of corporations, in our Military. (reference; "The Prosecution of George Bush for Murder" by Vincent Bugliosi, a famous prosecuting Atty, & General Sun-Tzu's work, "The Art of War") Sun-Tzu; "The way of the warrior is to win without conflict" "One only goes to War when absolutely necessary, it is of short-duration, and you know you will win" "You protect the lives of your soldiers, no unecesary risk to the lives of your soldiers" "The purpose of The Military is to protect The Country is it's People, if The Military loses it's purpose then The Military is lost. " When the administrative part of the government interferes with the Military, The Military is lost."
General Sun-Tzu, over 2000 years ago. (I hope the ACLU can help me there a Hate -Mob after me and the Sheriff here is "In Collusion" with the Hate-MOB, comitting crimes against me and gang-stalking me, & they put me under "false arrest" to bring false charges against me, to cover up their crimes.help) 707-513-9213 and American Citizens can Lobby as Private Citizens to "Abolish the War Racketeers from government" petitioning their government for change with copies of their written statements, The Magna Carta 1106? Runnymeade field England. I've written, "The Private Citizen Lobby" that is like an American Magna Carta that I'd like to be able to send you a copy of, Ann-Katherine lissa de la Quadra

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