Erik De Castro / REUTERS The Syrian city of Raqqa, October 2017.

Testing the Legal Limits of the War on Terrorism

The Case of an American Held in Iraq

As a presidential candidate, Donald Trump vowed to pursue more aggressive detention and interrogation policies for terrorism suspects. He supported sending detainees to Guantánamo Bay (“We’re gonna load it up with some bad dudes, believe me”) and torturing suspects (“Don’t tell me it doesn’t work—torture works”). Yet for all of Trump’s bluster, his administration’s actions on those matters have proved decidedly modest. For example, an executive order signed by Trump in January generally preserved the status quo for the 41 foreign citizens still in U.S. military custody at Guantánamo, none of whom were sent there by Trump. For better or worse, the Trump administration has shown little interest in pushing the boundaries of who may be held, and under what conditions, in conjunction with the ongoing armed conflict between the United States and al Qaeda and its affiliates.

Yet despite the administration’s reticence, those limits are being tested by a lawsuit that has flown largely under the public radar. Known as Doe v. Mattis, it involves an unnamed American citizen who allegedly fought alongside the Islamic State (also known as ISIS) in Syria and who has been detained by the U.S. military in Iraq since September 14, 2017. It raises questions that go to the core of U.S. counterterrorism policy: Has Congress authorized the government to use military force against ISIS? Even if it has, can such force be used against American citizens? And the case has posed an even more fundamental question: For how long can the U.S. government manage to detain one of its own citizens without giving a legal rationale for doing so by impeding the courts’ ability to entertain such a lawsuit? If the tortuous path the case has taken so far is any indication, the answer is not reassuring.

AUTHORIZING ENDLESS WAR

One week after the 9/11 attacks, President George W. Bush signed into law the Authorization for the Use of Military Force, the statute that, to

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