The man showed up on foot at a checkpoint maintained by the U.S. military’s Syrian allies around Sept. 11, 2017. After walking for two days in a desert area south of Shaddadi, he carried with him a GPS device, over $4,200 in American cash, a Quran, some clothes and, improbably for a desert, a scuba mask and snorkel.
The Syrian Democratic Forces, meanwhile, were fighting fiercely in Deir az-Zour and set up the checkpoint to catch ISIS fighters attempting to flee as civilians. But the man wasn’t trying to flee. Instead, he surrendered, said he was “Daesh”—a derisive slang name for ISIS—and asked to be taken to the Americans.
He also had on him something potentially valuable for the U.S. government: a four-gigabyte thumb drive filled with spreadsheets listing specific ISIS fighters, manuals for bomb-making and interrogation, and more than 10,000 photos and image files.
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As first reported by The Daily Beast, the man’s surrender has prompted one of the most significant detention cases in over a decade. He is the first U.S. citizen detained indefinitely without charge as an enemy combatant for alleged membership in ISIS. His name has remained unknown during his now-five-month-long detention, but the American Civil Liberties Union has won a preliminary fight in court to represent him as he challenges the basis for his detention—a fight with far-reaching legal implications.
Late on Wednesday night, the Justice Department for the first time released both its account of the circumstances surrounding his detention and its legal arguments for why it believes it can hold an American citizen without charge in military custody. And those arguments themselves carry several layers of risk—to the man himself, to American civil liberties, and to the war against ISIS. They have some terrorism-law specialists questioning why the Trump administration hasn’t instead attempt a criminal indictment of the man, under the broadly written federal statutes prohibiting terrorism.
That’s because of the specific arguments the government is making. To contend it has the right to hold the unnamed American as an enemy combatant, the Justice Department revealed Wednesday, it is relying in part on the 2001 congressional authorization against al Qaeda, which long predated ISIS, and the 2002 congressional authorization of war against Saddam Hussein, who has been dead for over 11 years.
It’s worth noting that the 2002 AUMF justified a war in Iraq, not in Syria, where this American was captured.
Almost as soon as the man was detained, legal scholars began warning that such tenuous legal authorization for the war on ISIS—pushed by President Barack Obama and embraced by President Donald Trump—made military detention for ISIS fighters a potential own-goal. Since the so-called 2001 AUMF concerns al Qaeda, not ISIS, someone detained but not charged with a terrorism offense is in a position to challenge the basis for his detention. That means a federal judge could rule not only that the detention is illegal but that the entire war is illegal.
As Judge Tanya Chutkan continues to hear the so-called habeas corpus case, now titled Doe v. Mattis, all eyes are on not just how she’ll rule, but how far she’ll go.
“It’s potentially putting before a federal judge the legal theory that underpins the continuing—and critical—counter-ISIS campaign,” said Joshua Geltzer, a Justice Department attorney and National Security Council official in the Obama administration.
“While I happen to have confidence in that theory, the government rarely is eager to put such a high-stakes issue up for grabs in litigation.”
Wrapping the legal justification for the anti-ISIS war in these early 21st century AUMFs predates Trump. Obama made a similarly eyebrow-raising choice when the war against ISIS got underway. Not only did ISIS not exist in the early aughts, ISIS transitioned from an offshoot of al Qaeda’s Iraq franchise into a terrorist group that actively battled and sought to discredit its forebear.
The Trump-era Justice Department has taken Obama’s arguments and run with them. It refers to the ISIS-al Qaeda split only as one that “reportedly emerged”—it is in fact substantial—and treats al Qaeda’s history since 2001 as leading inexorably toward the creation of ISIS. “A contrary interpretation of the statute,” the Justice Department warned in its Wednesday filing, “would allow an enemy force to manipulate the scope of the 2001 AUMF by splintering into rival factions.”
The 2002 AUMF was the legal underpinning of the war against Saddam Hussein’s Iraq and the subsequent U.S. occupation. To ground the American citizen’s detention in it, the Justice Department pointed to preamble language about the purpose of the war including “restoring peace and stability to the Persian Gulf region.” Since the citizen surrendered in Syria, not Iraq, the Justice Department added that “although the Iraq AUMF limits the use of force to threats to or stemming from Iraq, it, like the 2001 AUMF, contains no geographic limitation on where authorized force may be employed.”
If that isn’t enough for Judge Chutkan, the Justice Department cited something President George W. Bush’s administration ultimately abandoned under legal and political pressure: the president’s constitutional powers.
“[T]he executive branch has inherent authority to direct the deployment of military forces and, as part of that authority, the power to detain combatants captured on the battlefield for as long as U.S. troops are engaged in active hostilities on that battlefield,” Justice attorneys contended, relying on the sheer fact that Obama and Trump have prosecuted war in Syria.
Presidential “inherent” authority is “likewise sufficient basis to exercise military force” against ISIS, “a hostile organization that has both inspired and aided attacks on United States soil and that has attacked U.S. military forces overseas.” Trump’s emergent revival of claimed unilateral authority for warfighting has recently prompted alarm that he will cut Congress out for additional military campaigns, and even a preventive attack on North Korea.
The Justice Department’s legal arguments for detaining the man indefinitely aren’t the only legally significant items in its Wednesday filing.
Why Didn’t the Trump Administration Indict Him?
The document also reveals, for the first time, that for over two years, the government has possessed a thumb drive filled with biographical information on ISIS fighters who flocked to Syria to join the caliphate. After U.S.-aligned Syrian fighters captured the town of Tel Abayd from ISIS in mid-2015, they found the thumb drive at a local ISIS headquarters and passed it to the U.S. military that November. According to the Justice Department, on the drive is what “appears to be an intake form” listing the anonymous U.S. citizen as a “fighter.”
When the man surrendered, he had his own thumb drive on him. It contains “approximately ten” Excel spreadsheets in Arabic containing highly specific information on ISIS activities, the Justice Department alleged. One is titled “Ledger for Battalion Participation in the Attack,” listing eight ISIS fighters killed in an operation, complete with names, ID numbers, and battalion information. Another is an ISIS motor-pool inventory. A third is titled “Islamic State Spoils and Booty Bureau.”
On top of that, there is information from the man’s interrogation before he was read his legal rights—thereby rendering it inadmissible for trial purposes. According to a late November filing, the man was interrogated multiple times before he was Mirandized on an unknown date—at which point he requested and was denied an attorney. The Justice Department’s filing on Wednesday indicates that occurred within a week of his detention, on Sept. 18. (By then, the FBI had already served a search warrant on Google for his email, YouTube, and search history; and would within days serve another on Twitter for his tweets.)
All of that prompted questions among legal scholars about why the Trump administration chose to detain him militarily, rather than bringing charges against him in federal court.
“If he’s found on a list, then I don’t see why they couldn’t indict him,” said Karen Greenberg, the director of Fordham University Law School’s Center on National Security. “They don’t want to use the federal courts for international terrorism prosecutions anymore.”
Stephen Vladeck of the University of Texas was more circumspect, particularly on the 2015 foreign-fighter list, about the prospects for a criminal indictment. “I’m not sure the government would be comfortable relying upon such second-hand evidence as the sole basis for proving his material support, and the absence of criminal charges suggests that it doesn’t have anything more,” he said.
Vladeck thought there were ample opportunities for Chutkan to stop short of invalidating the ISIS war. While there may be a “sufficient” case that the 2001 AUMF covers ISIS, Vladeck said, it is “insufficiently specific vis-a-vis ISIS to authorize the detention of U.S. citizens.”
Greenberg, however, pointed to the Justice Department’s arguments as the wages of years of bipartisan failure to repeal the 2001 AUMF or offer up a new congressional declaration of war against ISIS.
“There’s been no taking on the AUMF and allowing it to be a placemarker for any kind of military behavior has been a problem forever,” she said. “How many congresses have considered taking it up and decided not to? This is the consequence of not confronting an issue that was too difficult to confront and everyone who could have addressed it ran away from it.”
While the anonymous U.S. citizen is allegedly listed as a “fighter” on the 2015-era thumb drive, his presumably inadmissible account of his own activities for ISIS places him far from the action. According to the Justice Department, after making two attempts to join the group, soon after ISIS’ June 2014 declaration of the Caliphate and—after briefly returning to the United States—again in 2015, he disbursed cash and vehicles to ISIS fighters; guarded an oil field; monitored “adherence by Imams and prayer callers to Sharia requirements”; and supervised civilians in an ISIS “heavy equipment office.”
And in a clue to his as-yet-unrevealed identity, he is said to be married with a 3-year-old daughter. A dual citizen of Saudi Arabia who spent many of the years before traveling to Syria in foreign countries, he had attended a Louisiana college in the mid-2000s, where an unnamed associate told the FBI he had a “wild” time, “typical of a college student with drinking, partying, gambling, and using marijuana.” Said to have a rich mother, the man “frequently gambled at casinos and frequented strip clubs” before returning to Saudi Arabia around 2006.
