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Today’s White House statement about last night’s spectacular Special Operations raid into Syria states that “This operation was conducted with the full consent of Iraqi authorities and, like our existing airstrikes against ISIL in Syria, consistent with domestic and international law.” However, the raid raises complicated questions about the domestic and international law basis both for the incursion into Syria, and for the detention of Abu Sayyaf’s wife, who was captured in the raid, and for Abu Sayyaf himself, had he been captured, rather than killed. Presumably, the domestic law authority both for the raid, and for the detention, is the 2001 AUMF, upon which the Obama Administration has been relying since last September for military operations against ISIS, despite the near unanimous agreement of observers that it is legal stretch to do so (given that the 2001 AUMF is directed at the “nations, organizations, or persons” responsible for the 9-11 attacks). It’s especially ironic that the Administration would continue to rely on the 2001 AUMF for detention for ISIS members, given that President Obama has repeatedly said that he wants to “repeal” the 2001 AUMF. By now, most legal experts see this as an aspirational nod to the left wing of the President’s base, rather than a legally prudent objective. Detention of ISIS members also underscores the urgent need for Congress to pass a new AUMF that focuses on ISIS. If the Executive branch detains ISIS members for any length of time, and the detainees bring legal challenges to their detention, the Executive branch may be forced to explain in court why the 2001 AUMF also applies to ISIS, and allows indefinite detention of ISIS members. The raid into Syria and detention of Abu Sayyaf’s spouse also raises complicated questions under international law. It appears that Syria did not consent to the use of force on its territory, so presumably the Administration justified the raid as an action in pre-emptive self-defense of the United States or U.S. nationals or collective defense of Iraq, where Syria was “unable or unwilling” to give its consent to the use of force. I suspect that few European governments, or US or international human rights groups, will condemn the raid, or the detention of Abu Sayyaf’s wife (or the potential detention of Abu Sayyaf), even though the Obama Administration’s domestic and international law rationale for the raid is presumably identical to the much-criticized legal rationales upon which the Bush Administration relied for military operations against members of Al Qaida in various countries outside Afghanistan. Finally, the detention of Abu Sayyaf’s wife (and the potential detention of Abu Sayyaf himself) raises questions regarding whether and how they might be (or might have been) prosecuted for war crimes or other offenses. Presumably, the Administration had a plan about what they might do with Abu Sayyaf, rather than simply detain him indefinitely. (Now the Administration will have to decide what to do with Abu Sayyaf's wife.) Perhaps he could have been (or she could be) prosecuted in federal court in the United States for material support for terrorism, but this would raise difficult policy questions about whether members of ISIS captured by the U.S. military in Syria belong in federal court. Earlier this year, I suggested in an op-ed in the New York Times entitled "Make ISIS Leaders Face Justice" that the U.N. Security Council should refer ISIS to the International Criminal Court, and that at least some senior ISIS leaders (though not necessarily Abu Sayyaf) might better be prosecuted in the Hague as international war criminals, rather than in New York or Baghdad.
John B. Bellinger III is a partner in the international and national security law practices at Arnold & Porter in Washington, DC. He is also Adjunct Senior Fellow in International and National Security Law at the Council on Foreign Relations. He served as The Legal Adviser for the Department of State from 2005–2009, as Senior Associate Counsel to the President and Legal Adviser to the National Security Council at the White House from 2001–2005, and as Counsel for National Security Matters in the Criminal Division of the Department of Justice from 1997–2001.
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