Guantanamo Prison, ISIS, and the 2001 AUMF

The New York Times reports that the White House is nearing completion of an order directing the Pentagon to bring future ISIS detainees to the Guantanamo Bay prison. The current version of the order drops previous proposed language regarding CIA black sites which was reported on earlier this week. However the current version does still pose a problem for the Trump administration in that it will allow federal judges to rule on the executive branch’s legal theory of the continued war against the Islamic State under the 2001 AUMF. The Obama administration’s legal theory was that ISIS was the continuation of the existing armed conflict with Al Qaeda and the Tailban, covered under the 2001 AUMF, and therefore ISIS did not require an updated AUMF. The Obama administration had to take this view to conduct operations against ISIS after Congress failed to enact a new AUMF against ISIS when asked by President Obama in 2015. Beyond the AUMF, ISIS detainees brought to Guantanamo would have standing to sue, which was the grounds for dismissing a suit brought by Army Captain Nathan Smith last year. Because of these reasons, national security lawyers are advocating against this proposed White House order. In the event that it is signed, Jack Goldsmith asserts that there is a “Practical Legal Need for an ISIL AUMF,” which this author fully agrees with.

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