As others have already noted, D.C. District Court Judge Royce Lamberth held last week that because “fighting continues” between U.S., Taliban and Al Qaeda forces in Afghanistan, Taliban prisoners held at Guantanamo may still be detained under the domestic statute (AUMF) authorizing their detention. I’ve written here and elsewhere about the propriety of the underlying legal theory in...
A fascinating ruling from the U.S. Supreme Court this morning in Zivotofsky v. Kerry, the case presenting the question whether Congress can mandate that U.S. citizens born (to American parents) in Jerusalem may have Israel listed on their passports as their place of birth. Since 1948, every U.S. president has carefully avoided opining in any context on the status of...
Cross-posted at Just Security As Marty Lederman’s earlier post explains, a D.C. district court is now considering the habeas petition of Guantanamo detainee Mukhtar Yahia Naji al Warafi, found in an earlier habeas case to be a member of the Taliban’s armed forces, who argues that because “hostilities” between the United States and the Taliban have ceased, the domestic statute (the...
While I've no insights into why the government finally permitted current Guantanamo detainee Mohammedou Slahi to publish the diary he hand wrote in English back in 2005, several years into his captivity, published it now is, subject to relatively minor redaction. The diary is a remarkable read in many respects; my longer take and a summary of Slahi's account...
Picking up on Kevin's post about Fox News' reporting on the terrorist threat (or something) in Europe, it's worth noting that in addition to reporting that multiple areas of Paris were now "no go" zones, Fox also reported "poll results" purporting to show that 69% of Muslims in France support ISIS; and an 'expert's' assertion that Birmingham, England is a...
When Peter Spiro wrote to ask me back in 2007 whether I might be interested in writing a response to then-State Department Legal Adviser John Bellinger’s posts on the blog, Opinio Juris, I had two nearly simultaneous reactions: (1) The U.S. State Department Legal Adviser was writing on a blog?!; and (2) Yes. I am, as I take it...
In case you missed it Monday, departing U.S. State Department special envoy for closing Guantanamo had a sharp op-ed in the N.Y. Times, marking the administration’s recent successes at moving detainees out of the prison and urging that further progress be made. Among other things, Sloan highlights several “fundamental misconceptions” he believes are behind continuing opposition in Congress and elsewhere...
For readers interested in the domestic U.S. law and history of how the U.S. government authorizes the use of force abroad, I had a little piece this weekend over at Daily Beast summarizing the state of play. Among other things, it laments not only the executive practice of not going to Congress as often as it should, but also...
In 2004, ISIL (then known as al Qaeda in Iraq) was part of al Qaeda proper–subject to its direction and control–in which capacity it attacked U.S. persons and was subject to U.S. combat operations. (Indeed, it was engaged in an armed conflict with the United States.) As such, ISIL was then covered by the 2001 AUMF as a component of al Qaeda. More recently, ISIL and al Qaeda “Central”–its “senior leadership”– have split apart. But ISIL has continued to attack U.S. persons, even after the split; and each of these two groups claims the mantle of al Qaeda–indeed, ISIL’s position (“supported by some individual members and factions of AQ-aligned groups”) is that it, not AQ Central, “is the true inheritor of Usama bin Laden’s legacy.” Accordingly, there are now, in effect, two al Qaedas, each of which was a component of the earlier, consolidated organization, and each of which continues its attacks on the U.S.In other words, picture an upside-down letter “V” or “Λ.” At the single, sharp point of the Λ is the organization called Al Qaeda, which is responsible for the attacks of 9/11, and which at one point included all of what we now call core al Qaeda (led by Osama bin Laden, now Ayman al-Zawahiri), as well as what was once called al Qaeda in Iraq (AQI) (led by Abu Musab al Zarqawi). Over time, the unity at the top of the Λ has given way to a disunity at the bottom – with both core Al Qaeda (Zawahiri’s group) and AQI (now called ISIL, led by Abu Bakr al-Baghdadi) seeking to, as Marty puts it, “claim the mantle of al Qaeda.” While identifying a variety of problems with the notion as a matter of statutory interpretation that the AUMF authorizes the use of force against both groups at the bottom of the Λ, both Marty and Steve argue that in key respects the validity of the theory depends on facts that are still not entirely known to the public. Is it accurate as a matter of fact to suggest that both core Al Qaeda and ISIL are both claiming or should be seen to have equal claims to “the mantle of al Qaeda”? One can imagine several ways of trying to take this theory seriously. One would begin by defining what the “Al Qaeda” at the top of the Λ (the group that attacked us on 9/11) was in the first place. One might define a terrorist group in a variety of terms, and I’m certainly open to definitional criteria. For present purposes, let’s take a handful: the organization’s name, its mission, its capacities and personnel, or any combination thereof. Then one would have to hold up each putative successor organization and see if there were any/sufficient commonality to call both AQ core and ISIL part of the same organization that attacked us on 9/11. Could ISIL in any sense assert a claim to carrying the mantle of Al Qaeda? What do we know?
Let’s start with the Administration’s newly minted theory (h/t Marty Lederman for posting the operative statement) that the statutory 2001 AUMF authorizes the President’s announced campaign to use force against ISIL in Iraq and Syria. The AUMF does not plausibly extend to ISIL. In addition to the reasons my friends Jens Ohlin, Jen Daskal and others have already...
