Next Steps for John Doe, Alleged American ISIS Member

An American citizen accused of being an ISIS member is challenging the U.S. military’s authority to detain him. The unnamed detainee (“John Doe” in legal documents) had been held for three months in Iraq without access to an attorney, before a federal judge ordered the government to allow him to speak with the ACLU lawyers now representing him.

John Doe argues that the government must either charge him with a crime or release him. The government, meanwhile, says it is still deciding what to do—continue holding him as an enemy combatant, charge him with a crime, or transfer him to the custody of another country.

At a hearing last week, Doe’s lawyers indicated that they will seek Doe’s release through a legal challenge: they will argue that the law does not allow the government to detain Doe without charging him with a crime. If Doe loses on this threshold legal question, he may also challenge the government’s account of what he did.

The government has presumably laid out its arguments for detaining Doe in a sealed brief, but the legal battle will likely hinge on whether the 2001 Authorization for the Use of Military Force (AUMF)—and the detention provisions of the 2012 National Defense Authorization Act, affirming the authority to send to Guantanamo individuals covered by the AUMF, and declining to authorize such detention for U.S. citizens—covers ISIS. Both the Trump and Obama Administrations have argued that the 2001 law, enacted to authorize the fight against those responsible for the 9/11 attacks—namely al Qaeda and the Taliban—covers the fight against the Islamic State. But national security experts, lawyers, and legislators say this a stretch given that ISIS didn’t exist in 2001 and has been in direct conflict with al Qaeda.

If the government doesn’t either charge or release Doe—thereby mooting his case—the court will have to decide whether the 2001 AUMF covers ISIS—a question Judge Chutkan, the federal judge on the Doe case, referred to as a “bramble” and a “thicket.” But as the Supreme Court demonstrated in its 2004 Hamdi v. Rumsfeld decision, it is up to the courts to cut through that bramble and interpret the scope of the 2001 AUMF.

The consensus among national security law experts is that there is scant legal authority to send ISIS members to Guantanamo, and even President Trump recently stated that doing so would be counterproductive. The military commissions at Guantanamo have an abysmal track record for bringing accused terrorists to justice, while U.S. federal courts have efficiently produced convictions in rights-respecting trials. Since 9/11, the government has used federal civilian courts to win convictions of more than 600 people in terrorism trials, while the Guantanamo system has achieved only eight convictions—three of which have been overturned. The civilian system has also allowed authorities to gather valuable intelligence from terrorism suspects, helping to prevent attacks.

The government has suggested it may transfer Doe to the custody of another country, but the ACLU says the government hasn’t demonstrated any legal authority to transfer him. Transfer, moreover, would require the government to ensure Doe wouldn’t be tortured in the receiving country.

In short, there are viable options available to the government for dealing with an American citizen accused of ISIS membership. Sending him to Guantanamo is not one of them.