In September, an American citizen captured in Syria while fighting for ISIS (John Doe) was handed over to the U.S. military. He is now being held in Iraq.
That’s a problem. In 2004, the Supreme Court ruled that the AUMF allowed American citizens to be detained and held as “enemy combatants” outside the civilian court system. But such detainees had to receive some measure of due process, including “a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker.”
All this raises issues for how the administration can deal with John Doe. The first option is to charge him in a civilian court — but doing so would require assembling admissible evidence that can convict him, which could be difficult. A second is to transfer him to Iraqi custody — but doing so risks violating a law against sending prisoners to countries that practice torture ...
For the past two months or so, the government has punted on the question by simply holding John Doe incommunicado. The ACLU has filed a lawsuit on his behalf, though it is not clear whether the organization has standing to bring this challenge. But at some point — surely soon? — the administration will have to make a choice.
The administration has suggested that perhaps Congress could craft an updated AUMF. But the administration has conditions — namely, that the AUMF have no conditions ... Tillerson and Mattis told the Senate that, “any new AUMF would need to be free of time constraints, geographical constraints or operational limitations; instead they proposed a conditions-based approach that would end the authorization only once certain targets are met. (These targets were not specified.)”
Will Congress write that almost-blank check? Will the courts force their hand? Stay tuned.