The Kansas City Shuffle: Arguing Jus in Bellum When Everyone is Looking to the Jus in Bello

By James A. D’Cruz

My colleague and friend, Andrew Hanson, has responded to my piece that argues that Mr. Hanson’s concerns over whether President Trump may detain members of ISIS at Guantanamo Bay Detention Facility (GITMO) pursuant to current congressional authorizations is unwarranted. Although my colleague had very valid points regarding President Obama’s manipulation of the 2001 AUMF, my point was simple: if the United States has the authority to conduct hostilities against members of ISIS, it must have the authority to detain those persons at GITMO. Now, Mr. Hanson responds that the actions pursued by the United States to dismantle ISIS are unlawful. Most interestingly, Mr. Hanson raises this constitutional challenge to the President’s war powers through a hypothetical ISIS detainee. Although this scenario is fascinating, my friend has attempted a Kansas City Shuffle: when everyone looks left, he tried to go right.

In all, Mr. Hanson has confused the jus ad bellum (the legal justification for conducting war) with the jus in bello (the legal framework in war). His musings of the 2001 AUMF, the 2002 AUMF, various opinions from the OLC, and the War Powers Resolution are likely of no consequence if his hypothetical were to come to fruition.

Let us start with the jus ad bellum. This is the only time in the international law of armed conflict, that the justifications for going to war are relevant. Mr. Hanson does not raise any concerns about the international justification for conducting hostilities with ISIS, but rather he focuses on the domestic justifications—rooted in Congress’s war powers under Article I.

“Associated Forces”

President Trump will likely continue to conduct hostilities against ISIL using the same rationale provided by President Obama. Although the rationale is admittedly hard to grasp, Congress has ratified President Obama’s assertion that ISIS is an “associated force” according to the 2001 AUMF. Under the 2001 AUMF, President Trump (and Obama preceding him) had wide latitude to pursue enemies of the United States. The statute passed by Congress permits the President “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.”[1] Although it is true that ISIL did not exist in 2001 and that it has conflicted with main branch of Al-Qaeda, ISIS is still logically an “associated force.”[2]

Although many jurists and scholars alike have argued that ISIS cannot be an “associated force” of Al-Qaeda due to their turbulent relationship, this argument utter nonsense. While the common definition of “associated” does include “to join as a companion, partner, friend, etc.,” it also means “accompanying” or “connected.”[3] ISIS and Al-Qaeda may not be allies or friends by any stretch of the imagination, but it is beyond dispute that members of Al-Qaeda compose at least some of ISIS’s membership. ISIS was birthed from Al-Qaeda in Iraq (AQI), which recruited many Sunnis loyal to Saddam Hussein.[4] From the initial invasion of Iraq in 2003 until the Arab Spring in 2011, AQI remained loyal to Al-Qaeda.[5] In the height of the Arab Spring, AQI broke away from Al-Qaeda (now ISIS) and established control over territory in Syria.[6] Those who argue that ISIS is not “associated” with Al-Qaeda look only to the time that the two organizations were at war—utterly ignoring that one birthed the other. As recruiting for ISIS grew, members of Al-Qaeda defected to the new group.[7] The Obama Administration used this information to legitimately argue that ISIS is targetable because “its predecessor organization, [AQI], communicated and coordinated with Al Qaeda; the Islamic State currently has ties with Al Qaeda fighter and operatives; the Islamic State employs tactics similar to Al Qaeda; and the Islamic State, with its intentions of creating a new Islamic caliphate, is the ‘true inheritor of Osama bin Laden’s legacy.”[8] As both Al-Qaeda and the Taliban are targetable due to their involvement with the attacks on September 11, 2001, so too must the organization that is comprised by members from both organizations.

Presidential War Powers

Even if the “associated forces” argument proves unavailing, President Trump has many other ways to infer authorization to attack ISIS. The President may rely on his inherent Article II powers or implied congressional authorization. Any of these arguments is likely sufficient.

First, President Trump should argue that his attack on ISIS is necessary under his Article II powers to prevent attacks on American persons, property, and interests both domestically and overseas.[9] This approach is not novel. During the Boxer Rebellion, President William McKinley sent 5,000 troops to China to protect Americans abroad. President McKinley maintained that this action was not “war” despite several clashes with Chinese forces.[10] President Truman deployed troops to Korea under what amounts to an Article II argument, which required the United States to defend its interests in South Korea pursuant to resolutions passed by the U.N. Security Council.[11]

It is clear that ISIS represents a very real threat to the United States both domestically and abroad. Beyond seizing oil pipelines, which threatens global supply and prices, ISIS has conducted or inspired attacks on NATO allies, including England, France, Germany, and Turkey.[12] Additionally, ISIS has inspired attacks in the United States in New York, New York; Dallas, Texas; Merced, California; San Bernardino, California; Philadelphia, Pennsylvania; and Orlando, Florida.[13] ISIS has made clear its mission to attack the United States at every available opportunity, a goal they have proven to take seriously. The President is much more apt to swiftly act on sensitive intelligence, both domestically and abroad. As the threat cannot be eliminated until ISIS is dismantled, Article II may be a great source of power for conducting hostilities with ISIS.

Secondly, President Trump (and Obama before him) may wave off concerns about lacking authority to conduct hostilities in Syria because Congress has ratified military action in Syria through appropriation. An authorization of military force is not necessary for the President to go to war. Courts have consistently held that congressional appropriations are enough for the President to infer consent.[14] In the context of the Vietnam War, for example, the Second Circuit held Congress’s actions to extend the Selective Service Act and appropriating funds for military operations was sufficient to ratify the President’s actions, even without the Gulf of Tonkin Resolution.[15] Rather, “the Constitution [only] required some evidence of mutual cooperation between the political branches in the prosecution of military activities.”[16]

It is undoubted that President Obama’s military action against ISIS was ratified by Congress. As I discussed previously, Congress has not complained about funding the conflict with ISIS.  The 2015 National Defense Authorization Act (NDAA) does appropriate funding to “provide assistance” to “[d]efend[] the Syrian people from attacks by the Islamic State of Iraq and the Levant (ISIL)” and to“[p]rotect[] the United States, its friends and allies, and the Syrian people from the threats posed by terrorists in Syria.”[17] This statement by Congress is broad, and should be read in favor of President Obama (and now President Trump). However, any claim that the President does not have authorization to conduct hostilities against ISIS must originate from Congress, not a detainee.[18]

Even if the NDAA is not enough, Courts have maintained that Congress, alone, has the burden of determining the facts of war until it reaches an impasse with the Executive.[19] Justice Ginsberg famously wrote in her concurrence of Goldwater v. Carter, that “[i]f the Congress chooses not to confront the President, it is not our task to do so.”[20] It is therefore reasonable to assume that courts will abstain from ruling that President Trump’s military actions against Syria are unlawful until Congress has exhausted its political options in restraining the President.

Political Question Doctrine

As Congress has not asserted that the President lacked authority to fight ISIL, any hypothetical case is likely to be dismissed by the political question doctrine.[21] The President may avail himself of the political question doctrine because Congress deferred to him the broad discretion “to use all necessary and appropriate force against those nations, organizations, persons he determines.[22] The only restriction on this discretion is that these “nations, organizations, or persons” must have been determined by the President to have “planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.”[23] An honest reading of the 2001 AUMF yields that as long as the President has a legitimate basis for determining that ISIS is an “associated force” of Al-Qaeda or the Taliban, no inquiry from the judiciary is warranted.

This interpretation, too, is grounded in stare decisis. As far back as 1827, the Court in Martin v. Mott held that “[w]henever a statute gives a discretionary power to any person, to be exercises by him, upon his own opinion of certain facts, it is a sold rule of construction that the statute constitutes him the sole and exclusive judge of the existence of those facts.[24] Allowing judges to interject their ideas of foreign policy is, in itself, an encroachment on the President’s powers “as the sole organ of the federal government in the field of international relations.”[25] As such, courts must hesitate before bypassing the political question doctrine to peak behind the curtain of the President’s judgement.

War Powers Resolution

Mr. Hanson also focuses on the War Powers Resolution as a potential roadblock for President Trump. This argument, too, is problematic. First, no president has maintained that the War Powers Resolution is constitutional. Rather, the Resolution is a gross overreach of the President’s Article II powers. However, there are a variety of policy reasons as to why presidents do not openly challenge the law. Even so, the law has no teeth. For instance, the 2000 bombing campaign of Yugoslavia supposedly violated the War Powers Resolution, but the D.C. Circuit dismissed a challenge because members of the Congress who brought suit against President Clinton were countered by equal numbers of Congress supporting President Clinton’s actions.[26] In all, unless a unified Congress sues the President for violating the War Powers Resolution, it is unlikely that an alleged violation of the Act will be of any consequence.[27]

Jus in Bello

Now, let us turn to the jus in bello. This realm of law is best visualized as completely separate from the jus ad bellum, as the arguments used for one regime rarely translates to the other. Under the international laws of armed conflict, hostilities against ISIS are regulated solely by Common Article 3 of the Geneva Conventions and Customary International Law. The United States has gone farther under the Obama Administration, to apply the international armed conflict rules of targeting and proportionality found in Additional Protocol I to the Geneva Convention.[28] The targeting and proportionality rules and Common Article 3 implicitly permit the detention of unprivileged belligerents. In any case, there is a widespread historical practice of such detention in non-international armed conflicts.

Domestically, the story is even less ambiguous. Federal law permits the detention of anyone who gives material support to designated terrorist organizations—including ISIS.[29] Furthermore, the Supreme Court held in Hamdi v. Rumsfeld that President Trump has the authority to detain individuals pursuant to the 2001 AUMF.[30]

Completing the Hypothetical: Detention of ISIS at GITMO

Despite all the rhetoric as to whether hostilities are authorized against ISIS, I still maintain that it is unlikely that a detainee held at GITMO would have standing to challenge the President’s authority to conduct hostilities against ISIS. It is true, of course, that detainees have standing to bring habeas corpus challenges to their detainment.[31] A detainee’s review is not as substantive and all-encompassing as Mr. Hanson presumes.  Rather, habeas review looks to “correct errors that occurred during CSRT proceedings.”[32] Courts must have “some authority to assess the sufficiency of the Government’s evidence against the detainee,” including “relevant exculpatory evidence that was not introduced during the earlier proceeding.[33]” Members of ISIS would be detained for their membership in terrorist organizations under domestic law or for international war crimes. As such, they may challenge their status as a belligerent or deny allegations of criminal activity. However, these proceedings are very much concerned with whether a proper targeting analysis was conducted in capturing the detainee in the jus in bello, not the President’s authorization to conduct hostilities in the jus ad bellum. As such, the Court would not be entitled to analyze whether the President had authority to detain any members of ISIS, but rather it would evaluate whether the detainees met the requirements of the domestic and international criminal law under the jus in bello.[34]

A court’s habeas corpus review will likely review the situation surrounding the capture and whether the detainee was actually a member of ISIS, but it will probably not declare invalid the entire conflict against ISIS. The Court in Parhat v. Gates did not abstain from determining whether a Parhat was a member of an “associated force.[35]” The Court determined that Parhat could not be an “associated force” of the Taliban because the Uighur independence movement, to which Parhat was a member, had no direct link to the Taliban.[36] However, at no point does the Court say that the President could not have designated the Uighur independence movement an “associated force” if it had some logical link to the Taliban. ISIS does bear this logical link, even if it is not to Mr. Hanson’s liking.

Conclusion

Of course, the preferred course of action for Congress and President Trump is to specifically authorize the use of force against ISIS. But this may not happen for a variety of practical and political reasons. As ISIS is unlikely to wait for us to get our ducks in a row before carrying out attacks against the United States and its allies, President Trump should not wait for Congress. He has a variety of options available to him for the conduct of hostilities against ISIS, all of which preclude detainees from challenging the President’s war power. President Trump inherited President Obama’s jus ad bellum authorization to conduct hostilities against ISIS. Once jus ad bellum authorization is satisfied, the President operates solely in the jus in bello, which naturally includes the right to detain members of ISIS where he sees fit—including GITMO. However, a detainee’s challenge of President Trump’s authority to combat ISIS is the pinnacle of a political question where the President has wide latitude to determine who is an “associated force” and Congress has not exhausted its political options for restraining the Executive’s actions.

[1] See Authorization of the Use of Military Force 2001, Pub. L. 107-40 § 2 (emphasis added).
[2] See Tewfik Cassis, “A brief history of ISIS,” The Week, Nov. 21, 2015, http://theweek.com/articles/589924/brief-history-isis.
[3] See “associate,” Webster’s New College Dictionary 86 (Wiley Publ’g ed. 2005).
[4] See Tewfik Cassis, supra note 2.
[5] See id.
[6] See id. Based on this, alone, there is a good argument that ISIS’s goal of destabilizing the Iraqi government permits the United States to conduct hostilities against the organization.
[7] See e.g., John Hall, “The growing influence of ISIS now reaches Pakistan as Taliban leaders pledge allegiance to brutal jihadist group,” UK DailyMail, Oct. 15, 2014, http://www.dailymail.co.uk/news/article-2793622/the-growing-influence-isis-reaches-pakistan-taliban-leaders-pledge-allegiance-brutal-jihadist-group.html.
[8] See White House, “Press Briefing by Press Secretary Josh Earnest,” September 11, 2014, available at http://www.whitehouse.gov/the-press-office/2014/09/11/press-briefing-press-secretary-josh-earnest-9112014.
[9] Cf.  Douglas Lovelace, Terrorism: Commentary on Security Documents Volume 142: Security Strategies of the Second Obama Administration: 2015 Developments 155 (Oxford Univ. Press ed. Mar. 23, 2016).
[10] Cf. Hijo v. United States, 194 U.S. 315, 323 (1904) (holding that a formal declaration by Congress was not necessary to establish the existence of “war”)
[11] See Louis Fisher, The Korean War: On What Legal Basis Did Truman Act?, 89 Am. J. Int’l L. 21–22 (1995).  There is an argument that President Truman did not rely on Article II at all, but simply on the U.N. Security Council Resolutions. This is probably a stretch due to the United States’ general practice of abstaining from using international law as a basis for war.
[12] See Tim Lister, Ray Sanchez, Mark Bixler, et al., “ISIS goes global: 143 attacks in 29 countries have killed 2,043,” Feb. 13, 2017, http://www.cnn.com/2015/12/17/world/mapping-isis-attacks-around-the-world/.
[13] See id.
[14] See e.g., Berk v. Laird, 429 F.2d 302, 305 (2d Cir. 1970).
[15] See DaCosta v. Laird, 448 F.2d 1368, 1369 (2d Cir. 1971); see also Berk v. Laird, 317 F.Supp. 715, 721–27 (E.D.N.Y. 1970); Orlando v. Laird, 317 F.Supp. 1013, 1016 (E.D.N.Y. 1970); Louis Fisher, Judicial Review of the War Power, Presidential Studies Quarterly 35 at 487 (2005), available at http://www.loufisher.org/docs/wp/422.pdf.
[16] See id. at 487.
[17] See National Defense Authorization Act for Fiscal Year 2015, Pub. L. 113-291 §§ 1209 (a) (1–2).
[18] See United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936).
[19] See e.g., Crockett v. Reagan, 558 F.Supp. 893, 898 (D.D.C. 1982), aff’d, 720 1355 (D.C. Cir. 1983).
[20] 444 U.S. 996, 998 (1979) (J. Ginsberg, concurring).
[21] See Baker v. Carr, 369 U.S. 186 (1962).
[22] See Authorization of the Use of Military Force 2001, Pub. L. 107-40 § 2(a) (emphasis added).
[23] See id.
[24] 25 U.S. (12 Wheat.) 19, 30.
[25] See United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936).
[26] See Campbell v. Clinton, 203 F.3d 19, 23 (D.C. Cir. 2000); see also Alan Greenblat, “Why the War Powers Act Doesn’t Work,” National Public Radio, June 16, 2011, http://www.npr.org/2011/06/16/137222043/why-the-war-powers-act-doesnt-work.
[27] See Greenblat, supra note 26.
[28] Compare Additional Protocol I to the Geneva Conventions Arts. 51 (5)(b); 52; 57 (2)(b) with e.g., U.S. Dep’t of Defense, Law of War Manual §§ 5.7.3.2 (Translating the continuous combat function of the targeting analysis used in international armed conflict to non-international armed conflicts as a matter of U.S. policy); 5.8.1 (Translating the direct participation in hostilities exception to the non-targetability of civilians from international armed conflict to non-international armed conflicts).
[29] See e.g., 18 U.S.C. § 2339B (prohibiting the act of providing material support to designated terrorist organizations).
[30] Hamdi v. Rumsfeld, 542 U.S. 507, 521 (2004).
[31] See Boumediene v. Bush, 553 U.S. 723 (2008).
[32] See id. at 786.
[33] See id. (emphasis added).
[34] See e.g., 18 U.S.C. § 2339B (prohibiting the act of providing material support to designated terrorist organizations).
[35] 532 F.3d 834 (D.C. Cir. 2008).
[36] Id. at 838.