LEGAL MEMORANDUM No. 203 | APRIL 17, 2017 The Case Law Concerning the 2001 Authorization for Use of Military Force and Its Application to ISIS Charles D. Stimson and Hugh Danilack Abstract The Obama Administration’s determination that ISIS is an “associat- Key Points ed force” that falls under the AUMF has not been challenged in court in the detainee context, and it is not clear that the courts will agree. n President Donald Trump and his The Trump Administration should therefore not attempt to detain Administration are exploring the ISIS fighters at Guantanamo Bay until it is on a stronger legal foot- possibility of detaining ISIS terror- ists at Guantanamo Bay to further ing. Before using Guantanamo as a detention facility for members the war effort to destroy ISIS. of ISIS, it should study the case law and evaluate the litigation risk. n Given the fact that al-Qaeda and the Taliban still pose a substantial Military detention of the enemy during wartime is a lawful, tradi- national security threat to the United States and its partners and that tional means of incapacitating the we continue to be engaged in armed conflict with those groups and as- enemy to deprive it of additional sociated forces, an AUMF that includes ISIS should not disturb the ex- forces and shorten the war effort. isting legal authorities applicable to al-Qaeda and the Taliban. This n Although the courts have ruled can be accomplished legislatively in a number of ways: either a stand- expansively on the scope of the alone AUMF specific to ISIS and associated forces or an AUMF that detention authority for individu- includes al-Qaeda, the Taliban, ISIS, and associated forces. als connected to the Taliban and al-Qaeda, it is not clear that he Islamic State in Iraq and Syria (ISIS) continues to conduct they would extend that author- Thostilities against the interests of the United States and its allies. ity to ISIS. In fact, the dissent- ISIS poses a significant threat and must be defeated. In the effort ing opinions in several habeas cases suggest that the courts to achieve this goal, President Barack Obama argued that the 2001 are beginning to question the Authorization for Use of Military Force (AUMF) gave him the legal attenuation of detention author- 1 authority to use military force against ISIS. This justification has ity jurisprudence. proven somewhat controversial in the legal community, with distin- n This war is like no other. It will guished scholars both supporting and challenging the applicability require all lawful elements of 2 of the 2001 AUMF to ISIS. Now, President Donald Trump and his national power to defeat the Administration are exploring the possibility of detaining ISIS ter- enemies of the United States. rorists at Guantanamo Bay to further the war effort to destroy ISIS. n Considering the interests at stake, the Trump Administration should This paper, in its entirety, can be found at http://report.heritage.org/lm203 support and Congress should The Heritage Foundation consider an AUMF that includes 214 Massachusetts Avenue, NE ISIS before bringing any ISIS Washington, DC 20002 detainees to Guantanamo. (202) 546-4400 | heritage.org Nothing written here is to be construed as necessarily reflecting the views of The Heritage Foundation or as an attempt to aid or hinder the passage of any bill before Congress. LEGAL MEMORANDUM | NO. 203 APRIL 17, 2017 The Obama Administration argued that ISIS is n Do not limit the methods of force that the Presi- an “associated force” that falls under the scope of dent can use, the 2001 AUMF, but this justification has not been challenged in a court of law. If an ISIS terrorist n Do not place express limits on authorized targets were detained at Guantanamo, it is very likely that other than by naming the enemy, and he would file a habeas petition in federal court to challenge the scope of the government’s detention n Do not limit the purpose of defeating the enemy authority. In such a case, the courts would have to and bringing the war to a successful conclusion.5 analyze closely whether ISIS falls into the covered class of individuals and organizations under the However, most of the AUMFs in U.S. history have 2001 AUMF as determined by the Supreme Court been far more limited than the broad authorizations of the United States and the lower federal courts. As enacted in the five declared wars. These AUMFs evidenced by the approach that they have taken in themselves have varied considerably in breadth their AUMF-detention jurisprudence, it is not clear and scope. For example, in the late 1790s, Congress that the courts would agree with the Obama Admin- authorized the President to use “particular armed istration’s justification. forces in a specified way for limited ends” against If the Trump Administration rushes to bring ISIS French naval vessels in the Quasi-War. Bradley and fighters to Guantanamo without a stronger legal Goldsmith write that the authorizations in the Qua- basis, those detainees might successfully challenge si-War did not authorize the President “to use all of not only their own detention under the AUMF, but the armed forces of the United States or to conduct also the Trump Administration’s entire legal jus- military incursions beyond specified military tar- tification for the authority to use all necessary and gets, and they limited the geographical scope of the appropriate force in the fight against ISIS. A review authorized conflict to the high seas.”6 In this way, of the Guantanamo habeas case law shows that the the Quasi-War AUMF was very limited. Trump Administration would be on more solid legal When one compares this authorization with the ground if it worked with Congress to craft an ISIS- Gulf of Tonkin Resolution—the primary congressio- specific AUMF before bringing any ISIS detainees to nal authorization for the Vietnam War—one sees a Guantanamo Bay. much broader mandate for the use of force. The Gulf of Tonkin Resolution authorized the President to AUMFs and Declarations of War: A use all necessary measures without restrictions on Historical Perspective resources, the method of force, or the authorized tar- Article I, Section 8 of the U.S. Constitution gives gets. It broadly allowed the President to repel attacks Congress the power “to declare War.” In the his- and prevent aggression in Southeast Asia without tory of the United States, Congress has declared procedural or timing limitation.7 Bradley and Gold- war 11 times relating to five different wars.3 It also smith argue that “[t]he Gulf of Tonkin Resolution has adopted over 40 authorizations for the use of is as broad as force authorization in declared wars military force.4 Every authorization is unique in its along the crucial dimension of resources, methods, breadth and scope, especially when a war is formal- targets, and purpose, and is arguably broader (or at ly authorized. least more open-ended) with respect to targets and As Curtis Bradley and Jack Goldsmith write, purpose.”8 “The limited authorizations [for the use of military force]…stand in sharp contrast to authorizations in The 2001 AUMF and the Detention declared wars.” They argue that “[t]here are four cru- Authority cial differences between authorizations in declared The 2001 AUMF,9 which has been used to pros- wars and authorizations in more limited conflicts.” ecute the war against the Taliban and al-Qaeda, Authorizations in declared wars: falls along the broader side of the spectrum when compared with AUMFs historically. It authoriz- n Do not restrict the resources available to es the President to “use all necessary and appro- the President, priate force against those nations, organizations, or persons he determines planned, authorized, 2 LEGAL MEMORANDUM | NO. 203 APRIL 17, 2017 committed, or aided the terrorist attacks that not been challenged in court in the detainee context, occurred on September 11, 2001….” Using their and as evidenced by the approach the courts have five analytical components for evaluating AUMFs, taken in their AUMF jurisprudence, it is not clear Bradley and Goldsmith conclude that “the [2001] that the courts will agree.16 Thus, in a habeas case AUMF is as broad as authorizations in declared involving an ISIS terrorist detained at Guantanamo, wars with respect to the resources and methods the courts must closely analyze whether ISIS could it authorizes the President to employ, and with fall under the 2001 AUMF. respect to the purposes for which these resources can be used.”10 Thus, the 2001 AUMF follows the How the Courts Became Involved in standard format for an AUMF that gives the Presi- Defining the Enemy dent broad powers. To begin to answer this question, we must look However, the 2001 AUMF is unique in one other at how the courts have become involved in defining important respect. In authorizing the President to the enemy and how they have interpreted the 2001 use force against the nations, organizations, and per- AUMF through Guantanamo habeas cases. sons that are connected to the September 11 attacks, Rarely in the history of warfare, and certainly the 2001 AUMF describes but does not specifically not in U.S. history, have prisoners of war been able name the enemies targeted under the authoriza- to challenge their wartime military detention in tion.11 While the statute nominally gives the Presi- court. It would have been unheard of, for example, dent the authority to make the determination about for the 400,000 German POWs held by the U.S. in which organizations or persons fall under the class World War II to be able to challenge their detention of individuals covered by the AUMF, the courts have in court.