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Last week, Nathalie and I wrote about the international law questions U.S. executive officials were likely considering while contemplating the continued detention and ultimate fate of the sole known ISIS detainee, and surely must have contemplated in the lead-up to her capture. Now Shane Harris and Nancy Youssef have an article in the Daily Beast titled “U.S. Has No Idea How Long It Will Keep an ISIS Bride Locked Up,” which raises two additional questions I want to address briefly: one about pre-capture planning, and one about potential litigation.
First, the alarming focus of the piece: According to Harris and Youssef, unnamed U.S. officials have suggested that there are no clear plans for what ultimately to do with Umm Sayyaf, and perhaps worse, that despite planning to take her in the raid, “there was no plan for what to do with her afterwards.”
I’ll take a moment to caveat my alarm: I know from my own experience in government that the statements of unnamed officials rarely reflect the whole story. Even if these sources are technically correct, one can imagine there may have been multiple options on the table at the time of the raid, but no clear decision as to which path the Administration would ultimately take.
Nevertheless, as Bobby Chesney has noted, the United States may well start capturing more ISIS figures, and it will need to figure out what to do with them. There will be the cases that can end in successful prosecution, per the Warsame example. And there will be the individuals who can safely be transferred or released to home countries. But what of those who cannot easily or safely be transferred or released? The legacy of Guantanamo suggests that there is a ‘you take it you bought it’ quality to detention in this conflict. In the Umm Sayyaf case, if the Administration does not have grounds to prosecute her, then it may well have gotten lucky with her Iraqi citizenship (or perhaps that even factored into the decision to detain her). But what if she had been Syrian? U.S. forces cannot – for reasons legal*, moral, political, and practical – transfer her to the Syrian government, nor is it a simple matter to drop her back off where they found her. (And even release or transfer in Iraq may not be so simple or safe.) These are genuinely hard issues. But if the Administration goes into these raids without a plan or at least real options for the end-game for each individual capture, it may well find itself expanding upon rather than diminishing the Guantanamo legacy, not because it wants to, but simply by default.
As for potential litigation: Harris and Youssef quote John Bellinger as suggesting that the Obama Administration could find itself before the courts once more if it engages in long-term detention of ISIS fighters. This may be wishful thinking. Certainly, the DC Circuit precedent in the al Maqaleh decisions, which refused to extend habeas to detainees held at Bagram, suggests that the courts are not leaping to intervene in U.S. detention decisions involving non-citizens abroad. The Boumediene factors test for habeas may well end with Guantanamo. But there may be some slight sliver of daylight between the Bagram cases and potential ISIS detention. Most critically, the Bagram cases involved in-theater detention (a factor the Boumediene court found salient) in a conflict over which the Supreme Court had already agreed that Congress had provided detention authority. The Administration’s argument that the same 2001 statute extends to ISIS is untested at best, and we have yet to find out where the Administration will set up detention facilities, if it does. (Another Boumediene factor addresses the process detainees receive to determine their status, and while the Maqaleh court was unimpressed with the Bagram processes, there may well be even less formal process in play here; then again there is likely a great deal more informal process involved in one-off captures such as this one.) Certainly, and perhaps ironically, if they bring Umm Sayyaf to Guantanamo – though unlikely for policy reasons – she will have her day in court. And if she or any future ISIS detainee does get into court one way or another, the Administration may well find itself defending its position that the AUMF stretches to groups like ISIS.
I hope that the officials Harris and Youssef quote are wrong about the extent of the Administration’s pre-capture consideration about end-game. No doubt there are many voices inside the Administration with different views on how best to handle the ISIS threat and whether and how to think about potential captures. But, as I’ve written here, decision-making once there are already facts on the ground, and in particular in the face of fast-paced litigation, is no way to create a forward-looking strategy. Administration officials and agencies concerned with discontinuing the Guantanamo indefinite detention legacy and who want to play a role in crafting the overall strategy need to address these issues before facts on the ground compel the Administration to take legal and policy positions antithetical to those it came in expounding.
* There are many potential legal hurdles to such a transfer or drop-off, under both IHL and human rights law, but the U.S. position on its non-refoulement obligations abroad is complicated, and framed as policy rather than law.
Rebecca Ingber is joining the faculty of BU Law this summer as an Associate Professor, after fellowships at Columbia Law School. She served previously in the Legal Adviser's Office at the State Department, where she worked most recently on matters involving the law of armed conflict and national security, and served as the principal staff attorney for domestic and foreign litigation issues involving the law of armed conflict.