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.
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.” 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.”
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.” 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. From the initial invasion of Iraq in 2003 until the Arab Spring in 2011, AQI remained loyal to Al-Qaeda. In the height of the Arab Spring, AQI broke away from Al-Qaeda (now ISIS) and established control over territory in Syria. 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. 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.” 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. 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. 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.
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. 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. 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. 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. Rather, “the Constitution [only] required some evidence of mutual cooperation between the political branches in the prosecution of military activities.”
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.” 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.
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. 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.” 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. 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.” 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.” 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. 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.” 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. 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.
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. 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. Furthermore, the Supreme Court held in Hamdi v. Rumsfeld that President Trump has the authority to detain individuals pursuant to the 2001 AUMF.
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. 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.” 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.” 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.
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.” 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. 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.
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.
 See Authorization of the Use of Military Force 2001, Pub. L. 107-40 § 2 (emphasis added).
 See Tewfik Cassis, “A brief history of ISIS,” The Week, Nov. 21, 2015, http://theweek.com/articles/589924/brief-history-isis.
 See “associate,” Webster’s New College Dictionary 86 (Wiley Publ’g ed. 2005).
 See Tewfik Cassis, supra note 2.
 See id.
 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.
 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.
 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.
 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).
 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”)
 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.
 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/.
 See id.
 See e.g., Berk v. Laird, 429 F.2d 302, 305 (2d Cir. 1970).
 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.
 See id. at 487.
 See National Defense Authorization Act for Fiscal Year 2015, Pub. L. 113-291 §§ 1209 (a) (1–2).
 See United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936).
 See e.g., Crockett v. Reagan, 558 F.Supp. 893, 898 (D.D.C. 1982), aff’d, 720 1355 (D.C. Cir. 1983).
 444 U.S. 996, 998 (1979) (J. Ginsberg, concurring).
 See Baker v. Carr, 369 U.S. 186 (1962).
 See Authorization of the Use of Military Force 2001, Pub. L. 107-40 § 2(a) (emphasis added).
 See id.
 25 U.S. (12 Wheat.) 19, 30.
 See United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936).
 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.
 See Greenblat, supra note 26.
 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 §§ 188.8.131.52 (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).
 See e.g., 18 U.S.C. § 2339B (prohibiting the act of providing material support to designated terrorist organizations).
 Hamdi v. Rumsfeld, 542 U.S. 507, 521 (2004).
 See Boumediene v. Bush, 553 U.S. 723 (2008).
 See id. at 786.
 See id. (emphasis added).
 See e.g., 18 U.S.C. § 2339B (prohibiting the act of providing material support to designated terrorist organizations).
 532 F.3d 834 (D.C. Cir. 2008).
 Id. at 838.
Why a New AUMF is Needed For the Islamic State: A Response to The Gamble That Isn’t
*By Andrew Hanson
In The Gamble That Isn’t, a response to my piece The GITMO Gamble, my colleague, James D’Cruz, questioned my concern with the President relying on the 2001 AUMF to detain ISIS members at GITMO. I argued that doing so was a gamble and that a new AUMF for ISIS would most likely be required. He argued that it would be “very unlikely” that any court would say the Trump Administration lacks the authority to detain members of ISIS at GITMO. He first argued that Trump has statutory authorization (e.g., the 2001 and/or 2002 AUMFs and/or the 2012 National Defense Authorization Act (NDAA)). Then, he turned to the president’s independent authority under Article II. He ends by discussing international law standards that were beyond the scope of my original argument and not salient for the questions of domestic authority that I was discussing. He suggested that there really is no gamble in sending ISIS detainees to GITMO.
While he brought up some interesting additional points, I think he missed the mark. For the reasons below, I think the gamble remains.
2001 AUMF and the 2012 NDAA:
I do not think it would be “very unlikely” for a court to hold that the scope of the 2001 AUMF does not reach ISIS. To my knowledge, no court has passed judgment on the issue. To be sure, courts have referred to “associated forces” when dealing with the 2001 AUMF, but those cases seem distinguishable from the context of ISIS. For example, in Awad v. Obama and Al-Bihani v. Obama, the courts were dealing with individuals who either joined Al Qaeda fighters or groups allied with the Taliban that contained Al Qaeda members. These are hardly as unique and apart from Al Qaeda as ISIS is.
In Parhat v. Gates, where the detainee was not a member of Al Qaeda or the Taliban, while the court did not address the questions of what the precise definition of an “associated force” is or whether using “associated forces” within the definition of enemy combatant exceeds the scope of the 2001 AUMF, it noted that the government’s argument for an “associated force” requires a connection “considerably closer than the relationship suggested by the usual meaning of the word ‘associated.’” In the end, it held that there was insufficient evidence to establish whether Parhat was associated with Al Qaeda or the Taliban in order to be labeled and “enemy combatant” according to the DoD definition. Thus, it would appear very likely that a court would be willing to entertain the questions of whether a group is an “associated force” or whether such an interpretation would exceed the scope of the 2001 AUMF.
It is also possible that without sufficient evidence showing a considerably close relationship, a court might refuse to determine that ISIS is associated with Al Qaeda. While Al Qaeda in Iraq may have planted the seeds of ISIS, it is a very unique and distinguishable entity that has had friction with Al Qaeda since the beginning. That is not to say that it is impossible that a court would determine that ISIS is, indeed, an associated force with Al Qaeda and that the 2001 AUMF thus reaches it. But, as many experts have suggested, saying that ISIS is an associated force of Al Qaeda is a stretch. Even those who support a broad view of what an “associated force” could mean under the AUMF note that it “does not mean ‘not associated’ or ‘repudiated by’ or ‘broken with’ or even ‘used to be associated with.’”
“The language in the NDAA,” Mr. D’Cruz argues, “has been purported to amend the 2001 authorization to permit the use of force against ‘associated forces.’” Yet, even if the 2012 NDAA says that “associated forces” may be detained pursuant to the AUMF, it is merely an affirmation that the AUMF includes detention authority. That is not contested. Nonetheless, the NDAA does not define what an “associated force” is. If the government’s past litigation arguments were any indication, being “associated” would require more than simply aiding and abetting. It would require a considerably close relationship. It would be quite the argument to suggest that Al Qaeda and ISIS are in a considerably close relationship. Thus, even if “associated forces” is read into the 2001 AUMF via the NDAA, it does not negate the need for a new AUMF related to ISIS because, as many experts suggest, arguing that Al Qaeda and ISIS are associated forces is problematic.
Overall, I think it is not as clear as my colleague suggests that the 2001 AUMF or the NDAA provide statutory authority for the Trump Administration to detain ISIS members.
2002 Iraq AUMF:
Mr. D’Cruz briefly suggests that the 2002 AUMF for Iraq provides the authority to use force against, and detain, ISIS members. Admittedly, this is a stronger argument than relying on the 2001 AUMF. However, by its terms, it would appear to apply to the Iraqi state (i.e., the Iraqi government, military, etc.). Even if it could be read to apply to any and every threat emanating from Iraq, that would prohibit its usefulness in Syria, Libya, and any other places we have attacked ISIS. Could a member of ISIS detained in Syria be held at GITMO under the 2002 AUMF? This, too, seems to be a stretch.
Unilateral Action Under Article II:
His next argument is that the President can rely on his independent Article II authorities to use force against, and detain, members of ISIS. But, let’s walk through that analysis.
We can agree that the authority to use “force” includes the authority to detain for the duration of the conflict. When a president is not relying on a congressional authorization to use force, the big questions are whether the president has the independent constitutional authority and whether there are any statutory limitations.
Under the Krass OLC Opinion on Libya, the government argues that it is permissible to unilaterally use force under Article II if: 1) there are strong national interests justifying the use of force without prior congressional authorization and, 2) it is not a “war” within the meaning of the Declare War Clause. Otherwise, congressional authorization is required. Admittedly, the first factor is a low bar and certainly met with regards to ISIS. However, the determination of whether the activities reach the level of a “war” is a fact-specific assessment that arguably cuts against the president’s unilateral action in this context. According to the Krass Opinion, a “war” exists if and only if there is “prolonged and substantial military engagements, typically involving exposure of U.S. military personnel to significant risk over a substantial period.” In the context of ISIS, we have been fighting them since at least 2014 (but arguably as far back as 2011). We have utilized bombers, drones, and even deployed boots on the ground in the fight against ISIS. In fact, we have lost military personnel in both Iraq and Syria. This sounds like a prolonged and substantial military engagement that has involved exposing U.S. military personnel to significant risk—including death—over a substantial period of time. If the fight against ISIS is a “war,” by these terms, then the president must obtain congressional authorization. Up to this point, the government has relied on the 2001 AUMF. If a court strikes that reading down, then what?
If it is not a “war” and the president can unilaterally use force, then the next question is whether the actions violate the War Powers Resolution (WPR). Under the Moss OLC Opinion on Kosovo, appropriations statutes can suffice for specific authorization for the purposes of Section 5(b) of the WPR, notwithstanding Section 8(a)(1) (which states that general appropriations are not a specific authorization). But, as I said in my previous post, it is not clear that authorization for the purposes of the WPR would be the same as authorizing the use of force for detention purposes.
Harold Koh has also stated that if the operations do not rise to the level of “hostilities” within the meaning of Section 4(a)(1) of the WPR, then the WPR clock does not start to run. But that, too, does not save unilateral action in this case. When determining whether activities constituted “hostilities” under the WPR, Koh said we should consider whether there is: a limited mission, limited exposure of U.S. forces, limited risk of escalation, or limited military means being utilized. The U.S. is playing a pivotal role in the fight against ISIS, including the use of ground troops, intelligence, and air power. The fact that there are Special Forces units on the ground increases the risk of escalation (beyond the escalation that has already occurred since 2014). And the use of airpower, intelligence, and Special Forces is hardly “limited” military means.
As of February, the U.S. has spent $11.4 billion dollars fighting ISIS. Out of the 18,666 strikes by U.S. and Coalition forces in Syria and Iraq, the U.S. has conducted 14,704 of them. That is not including strikes against ISIS in Libya. As mentioned above, we have also been deploying boots on the ground and losing military personnel in this fight. This has been going on for at least the last 3 years (far more than the limited bombings of seventeen days or two months in Bosnia and Serbia, respectively). As Mr. D’Cruz concedes, this is certainly an “armed conflict” under international law. It defies logic to argue that this is not “hostilities” within the meaning of the WPR. Whether the metric is “war” or “hostilities,” the fight against ISIS arguably meets both. As such, the president would need congressional authorization.
If the president decides to send an ISIS detainee to GITMO, providing an opportunity to challenge his detention under Habeas Corpus, and the court were asked to opine on whether the 2001 AUMF’s “associated forces” argument reaches ISIS, but says it does not (which isn’t impossible), that would put the ISIS fight in an odd place. The solution is a new AUMF for ISIS. The question is whether Democrats would allow it. Hence the reason I suggested sending an ISIS detainee to GITMO would be a gamble.
(Photo Credit: Public Domain)
* Andrew Hanson is a 3L at Harvard Law School.
 608 F.3d 1, 3 (D.C. Cir. 2010).
 590 F.3d 866, 869 (D.C. Cir. 2010).
The Gamble That Isn’t: Trump’s Ability to Detain Members of ISIL
James A. D’Cruz* (Published March 3, 2017)
Andrew Hanson, in his piece The GITMO Gamble, briefly considered whether the Obama Administration had given President Trump the key to detaining members of ISIL in the Guantanamo Bay Detention Facility (GITMO). Hanson expresses concern about whether the courts will accept the Obama Administration’s expanded interpretation of the 2001 AUMF, and posits that the courts’ rejection of the interpretation would require Congress to pass a new authorization. However, it is very unlikely that any court would hold that President Trump lacks the authority to detain members of ISIL at GITMO.
The first inquiry in determining whether President Trump has the authority to detain members of ISIL at GITMO is whether he has been authorized by Congress or his independent Article II powers to conduct hostilities against the group. This analysis begins with the Supreme Court opening the door for an expansive reading of the 2001 AUMF in its decision of Hamdi v. Rumsfeld. After ISIL established itself as a threat, President Obama purported that the authority to conduct hostilities against the Islamic State stemmed from the 2001 AUMF, as ISIL constitutes an “associated force” of Al-Qaeda.
The phrase “associated forces” was introduced by the Deputy Secretary of Defense’s Order on July 7, 2004, which set forth the definition of an “enemy combatant” for use by Combatant Status Review Tribunals (CSRTs). Under this definition, an “enemy combatant” is “an individual what was part of or supporting Taliban or Al Qaida forces, or associated forces that are engaged in hostilities against the United States or its coalition partners.” This definition was seemingly conflated with the 2001 AUMF by the D.C. Court of Appeals, constructing the current reading of the authorization to include “associated forces.” However, even if this interpretation of Hamdi and Parhat is mistaken, Congress nevertheless authorized the use of force against “associated forces” in the 2006 Military Commissions Act and the National Defense Authorization Act (NDAA) for Fiscal Year 2012. Although the NDAA is distinct from the 2001 AUMF, the language in the NDAA has been purported to amend the 2001 authorization to permit the use of force against “associated forces.”
Even if the 2001 AUMF proves unavailing, the Trump Administration may rely on the 2002 Iraq AUMF or the Executive Branch’s Article II powers. President Obama claimed that because ISIL had a presence in Iraq and threatened the stability of the new government, the 2002 AUMF and the 2001 AUMF permitted the conduct of hostilities in Iraq and Syria. Although President Obama sought to repeal the 2002 authorization in his proposed ISIL AUMF, Congress failed to enact the new authorization. Beyond this, ISIL’s continued existence represents a very serious threat to the United States. President Trump may rely on his Commander-in-Chief power to defend the United States from the threat of terrorist attacks against the United States or its interests as was done by President Harry Truman when he ordered the invasion of Korea. This right is bolstered by Article 51 of the U.N. Charter.
After the jus ad bellum requirements of the International Law of Armed Conflict are satisfied, the conflict with ISIL is likely classified as a non-international armed conflict, giving the United States considerable discretion in its use of force. The United States argues that it may use force against belligerents who are directly participating in hostilities, have a continuous combat function, or are members of terrorist organizations. If the President has the power to kill these belligerents under the Law of Armed Conflict, he must have the authority to detain those individuals—surely a lesser punishment. Therefore, the Trump Administration, not bound by the Prisoner of War provisions in Geneva Convention IV, can detain members of ISIL either at detention facilities in or near the zone of hostilities or at GITMO.
There is simply nothing special about GITMO that would prevent individuals from being detained there, rather than at detention facilities in Iraq or Syria. Customary International Law has long recognized the right to detain individuals in armed conflict. Without this power, belligerents would be incentivized to exercise only deadly force in conflicts—a notion repugnant to the spirit of international law. For the courts to suddenly hold that President Trump cannot detain members of ISIL would be to declare that President Obama acted beyond his constitutional authority and committed crimes against the state, if not international war crimes. The ramifications are simply too great, and courts have never taken such a drastic measure in administrations past. Ideally, Congress would authorize a new AUMF against ISIL, but such authorization is likely the stuff of fairy tales in such a divided Congress, and is probably not required under the current interpretations of the 2001 and 2002 AUMFs.
* J.D. Candidate, Harvard Law School, 2017; B.A., Florida International University, 2014; National Security Certificate, Florida International University, 2014.
 542 U.S. 507, 518 (2004) (citing 115 Stat. 224) (“The AUMF authorizes the President to use “all necessary and appropriate force” against “nations, organizations, or persons” associated with the September 11, 2001, terrorist attacks.”).
 See Parhat v. Gates, 532 F.3d 834, 837–38 (D.C. Cir. 2008).
 See id. (citing to the Deputy Secretary of Defense Order and Secretary of the Navy Memorandum) (emphasis added).
 See Al-Bihani v. Obama, 590 F.3d 866, 872 (D.C. Cir. 2010) (citing § 948a (1)(A)(i) of the 2006 Military Commissions Act); see also Al-Adahi v. Obama, 613 F.3d 1102, 1103 (D.C. Cir. 2010), cert. denied, 131 S. Ct. 1001 (2011); Anwad v. Obama, 608 F.3d 1, 11–12 (D.C. Cir. 2010), cert. denied, 131 S. Ct. 1814 (2011); Pub. L. 112-81 § 1021 (Dec. 31, 2011).
 See Matthew C. Weed, 2001 Authorization for Use of Military Force: Issues Concerning Its Continued Application 15, Congressional Research Service (April 14, 2015) available at https://fas.org/sgp/crs/natsec/R43983.pdf.
 See id. at 5.
 See id.; see also Matt Fuller, Why Won’t Congress Declare War on ISIS?, The Huffington Post, Dec. 15, 2015, http://www.huffingtonpost.com/entry/congress-isis-war_us_566f47cae4b0fccee16f938b.
 See U.S. Const. art. II § 2; see also U.N. Charter, art. 51 (protecting the “inherent right . . . tof self-defense.”).
 See U.S. Dep’t of Def., Law of War Manual §§ 5.8.1, 5.8.2 (Dec. 2016 Update); see also Additional Protocol I, art. 51 (3) (“Civilians shall enjoy the protection afforded by this Section, unless and for such time as they take a direct part in hostilities.”).
 See Hamdi, 542 U.S. at 518 (2004).
The GITMO Gamble: Will Trump Be Able to Send ISIS Members to Guantanamo Bay
By Andrew Hanson* (Published February 27, 2017)
During the presidential campaign, it was clear that Donald Trump wanted to keep Guantanamo Bay (GITMO) open for the detention of terrorism suspects, potentially including U.S. citizens. An Executive Order draft appears to affirm the Administration’s desire to use GITMO for terrorism suspects, such as members of ISIS. But it may not be so easy to pursue this plan without help from Senate Democrats.
Interestingly, Trump’s authority to send ISIS detainees to GITMO was, in large part, due to President Obama. The Obama Administration based its use of force against ISIS on the 2001 Authorization for Use of Military Force (AUMF). The Administration interpreted the statue to authorize force against al-Qaeda, the Taliban, and their “associated forces” and it deemed ISIS to be an “associated force” of al-Qaeda. No court has analyzed this interpretation of the AUMF.
Another wrinkle is the case of Hamdi v. Rumsfeld, which stated that the AUMF’s grant of “necessary and appropriate force” includes the authority to detain enemy combatants for the duration of the relevant conflict. This means that if ISIS is an “associated force” of al-Qaeda, then the president may detain them at GITMO during the duration of this seemingly endless conflict. As such, Obama’s interpretation of the AUMF authorizes Trump to send ISIS detainees to GITMO.
The same year Hamdi was decided, in Rasul v. Bush, the Supreme Court held that GITMO detainees have the right to challenge their detention under habeas corpus. This would mean that an ISIS detainee brought to GITMO would be entitled to challenge their detention under the Obama interpretation of the AUMF. Many experts consider this interpretation to be a stretch.
If a court were to reject the AUMF as grounds for detaining ISIS members that would also limit the United States’ ability use military force (in the traditional sense) against ISIS targets overseas without a new authorization. To be sure, there is a legal opinion by the Office of Legal Counsel, which concludes that congressional authorization for funding in support existing conflicts would suffice for an authorization for that conflict. But that opinion deals primarily with the limitations imposed by the War Powers Resolution and it is not clear that the Supreme Court’s emphasis on the textual authorization of “necessary and appropriate force” in the AUMF could be applied to an authorization implied from merely approving funding for an existing conflict.
The end result is that if an ISIS detainee is brought to GITMO prior to a new AUMF and the court rejects the current government interpretation of the 2001 AUMF, the detainee may be ordered released and the use of military force overseas against ISIS may be impacted. The solution would be to either not bring ISIS detainees to GITMO or get congress to authorize a new AUMF related to ISIS. That’s where Senate Democrats comes in.
Senate Democrats appear to want GITMO closed, but that appears unlikely under the current Administration. However, they may be able to become an obstacle to transferring new detainees there. If Democrats were to filibuster attempts at passing a new AUMF, would Trump run the risk of proceeding on the current AUMF interpretation? Perhaps Democrats would find approving a new AUMF to be more important than preventing new transfers to GITMO? Or perhaps the courts would accept the “associated forces” interpretation. What seems clear is that there is a real gamble in pursuing the Administration’s desire to utilize GITMO moving forward. We will have to wait and see how things proceed.
(Photo Credit: Public Domain)
 Hamdi v. Rumsfeld, 542 U.S. 507, 521 (2004).
 Rasul v. Bush , 542 U.S. 466, 483 (2004).