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.”
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.
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