It certainly wasn’t clear at the time—nor is it entirely clear today—but the beginning of the end of the war on terrorism as we know it might have come last September, when a slight and unarmed man climbed on board a water truck in Syria, rode it across the front lines, and surrendered to Kurdish forces, who turned him over to the U.S. military. At the time of his surrender, the man was carrying a Koran, a GPS locator, more than $4,000 in cash, two thumb drives containing thousands of internal documents from the Islamic State, including personnel rosters and bomb-making manuals, and, for reasons unknown, a set of snorkel gear.
The man told his American interrogators that he was a U.S. citizen, and that he had come to Syria in January 2015 to cover the war as a freelance journalist before being imprisoned for seven months by ISIS. He swore a loyalty oath to the group and was conscripted to perform what he said was administrative and religious work. After two months of guard duty at an oil-field compound, however, he lost his enthusiasm for the cause and deserted his post, leading to another spell in prison and a reassignment. He tried to settle down in Syria as a farmer of olives and almonds. At one point he bought 80 sheep and made a plan to resettle in Turkey, as a shepherd. Then, in 2017, after arguing with his wife, he finally quit ISIS for good.
The evidence that he engaged directly in fighting during his time with ISIS is circumstantial, relying mostly on his Google search history and the likelihood that he was in an area of active hostilities. Nevertheless, the Trump administration has deemed him to be an “enemy combatant,” making him one of a very select group of Americans to receive that designation since the terrorist attacks of September 11, 2001. Since surrendering to U.S. forces, he has been held in an undisclosed location in Iraq, with limited access to the rights and prerogatives of the U.S. court system. Even his identity has remained a closely guarded secret. In court filings he is known simply as Unnamed U.S. Citizen or John Doe.
Shortly after learning of Doe’s detention through media reports last fall, the American Civil Liberties Union filed a lawsuit against the Trump administration. In it, the group argued that imprisoning Doe indefinitely represents a gross violation of his constitutional rights. It has demanded that the government provide Doe with access to attorneys, transfer him to the U.S. criminal justice system, and either charge him with a crime or release him. “Indefinite military detention without charge has proven to be unlawful and illegitimate, resulting in prolonged (and ongoing) legal battles, human suffering, and the erosion of the United States’ moral standing in the world,” Anthony Romero, the ACLU’s executive director, wrote in a letter to Defense Secretary Jim Mattis and Attorney General Jeff Sessions last September.
Yet the significance of John Doe’s case goes beyond the question of whether the Trump administration is illegally holding a U.S. citizen without trial. Since September 11, U.S. presidents have enjoyed almost unchecked authority to pursue military operations overseas in the name of safeguarding the American people. After inheriting the wars in Afghanistan and Iraq from George W. Bush, Barack Obama used that authority to extend America’s counterterrorism efforts to include military actions in Yemen, Libya, Somalia, Syria, and other countries. Now, as the case of John Doe demonstrates, Donald Trump is attempting to expand the scope of the war on terrorism even further—an effort that the courts may ultimately find to be illegal. If the ACLU ultimately prevails in John Doe v. Mattis, as the case is known, the result could call into question the fundamental basis of many of America’s military endeavors around the world and force the U.S. government to place limits on the power that the president may wield as commander-in-chief.
To understand John Doe’s importance, one must go back to the 2001 Authorization for Use of Military Force, the legal justification on which the global war on terrorism depends. To prevent future terrorist attacks, the AUMF granted the president broad power “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.”
Congress wrote that text in haste just hours after the September 11 attacks and passed the resolution on September 14, 2001, by a vote of 420 to 1. The lone dissenter was Representative Barbara Lee, a Democrat from California. “I am convinced that military action will not prevent further acts of international terrorism against the United States,” Lee said at the time. The AUMF draws an amorphous boundary around an enemy that was later deemed by Congress to include not just Al Qaeda and the Taliban in Afghanistan but also “associated forces”—two words that have provided a thin pretext of authorization for actions against militants around the world, including Boko Haram in Nigeria, Al Shabab in Somalia, and the Nusra Front in Syria. The AUMF “is like a Christmas tree,” John Bellinger III, a Bush administration lawyer and one of the legislation’s original authors, told BuzzFeed’s Gregory D. Johnsen in his 2014 history of the consequential text. “All sorts of things have been hung off of those 60 words.”
While the AUMF makes no explicit mention of detention or surveillance, the Bush administration used it to justify the indefinite detention of enemy combatants and as part of the legal basis for its highly controversial warrantless wiretapping program, in which it sucked up the communications of millions of Americans. Gina Haspel, Trump’s pick to replace Mike Pompeo as CIA director, forged her reputation at the agency during the Bush years, overseeing a secret prison in Thailand where at least one Al Qaeda suspect, Abd Al Rahim Al Nashiri, was waterboarded on her watch. Later, according to a CIA memoir, Haspel drafted a cable ordering the destruction of videotapes depicting CIA waterboarding.
Click, hold, and drag
When Barack Obama took office, he promised to wind down the misguided war in Iraq, ban torture, and close the prison at Guantánamo Bay. “All too often our government made decisions based on fear rather than foresight,” he said in a speech in May 2009. “The last eight years established an ad hoc legal approach for fighting terrorism that was neither effective nor sustainable.” Going forward, he said, his administration would develop a strategy that is “consistent with our values and our Constitution.”
After all, despite Bush’s aggressive efforts to expand executive authority, the president does not have the power to declare war unilaterally. The 1973 War Powers Resolution requires the White House to obtain congressional approval when deploying U.S. military forces—a check designed to prevent a slippery slide into another undeclared Vietnam.
Two years later, however, Obama ignored the War Powers Resolution when he committed American forces to the campaign against Muammar Qaddafi in Libya without seeking congressional approval. The Obama administration insisted its actions were lawful, because “U.S. operations do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve U.S. ground troops.”
“We are not saying the War Powers Resolution is unconstitutional or should be scrapped or that we can refuse to consult Congress,” Harold Koh, a legal adviser to Obama’s State Department, who had been a persistent critic of the Bush administration’s use of executive authority, told The New York Times. “We are saying the limited nature of this particular mission is not the kind of ‘hostilities’ envisioned by the War Powers Resolution.”
Debates over the president’s warmaking powers flared again in 2014 when Obama announced a campaign of airstrikes to combat the growing threat of ISIS. “We will hunt down terrorists who threaten our country, wherever they are,” Obama said that September. “That means I will not hesitate to take action against ISIL in Syria, as well as Iraq,” he said, using the administration’s preferred name for ISIS. In his speech, Obama called on Congress to pass a new AUMF that would grant him specific approval for the ISIS campaign. “I welcome congressional support for this effort in order to show the world that Americans are united in confronting this danger,” he said. But, Obama cautioned, he didn’t actually need Congress’s go-ahead—he already had all the authority he needed under the 2001 AUMF.
In this way, Congress’s hasty approval, nearly two decades earlier, to combat Al Qaeda in Afghanistan was stretched to justify the military campaign against ISIS in Syria.
ISIS shares with Al Qaeda a common genealogy and some of its membership, but it did not exist when Congress signed the AUMF, and the two groups are now openly fighting. “That Al Qaeda and ISIL now manifest themselves as two heads of a modern day Lernaean Hydra should not undermine the Executive’s ability to battle both heads to defeat the beast,” the Department of Justice claims in one of its briefs in the John Doe case. “Congress did not grant the executive the authority to ‘battle’—indefinitely and at its own discretion—‘two [or more] heads of a modern day Lernaean Hydra,’” the ACLU responded. “Even if the 2001 AUMF does authorize the executive to battle two heads of the same beast, Al Qaeda and ISIS are two different beasts that only temporarily aligned.” The real beast here may well be the AUMF itself, which seems to sprout new heads for whatever military adventure subsequent presidents want to put it to.
The last American to be detained as an enemy combatant was Yaser Esam Hamdi, a Louisiana-born dual citizen of the United States and Saudi Arabia who was captured in Afghanistan in 2001. Hamdi was brought to Guantánamo by accident, then quickly transferred to a naval brig in Virginia. Three years after his capture, in June 2004, the Supreme Court ruled that Hamdi could not be held indefinitely without being given an opportunity to challenge his detention in court. “A state of war is not a blank check for the president when it comes to the rights of the nation’s citizens,” Justice Sandra Day O’Connor wrote in the court’s opinion. That fall, after renouncing his U.S. citizenship, Hamdi was released without charge and emigrated to Saudi Arabia.
The Hamdi decision clearly implies that John Doe is similarly entitled to an adversarial hearing and a weighing of the evidence, but the Trump administration appears to be in no hurry to grant him one. It has taken pains to conceal Doe’s identity and has resisted the ACLU’s attempts even to make contact with him. More than 90 days passed before Doe first spoke with his lawyers, according to the ACLU, and they have still not been able to arrange a face-to-face meeting. “This is the nightmare scenario, where the government has locked up an American citizen in secret,” the ACLU’s Jonathan Hafetz argued in federal court in November. Denying Doe access to a lawyer, he asserted, would “create a constitutional black hole for American citizens.”
It remains unclear exactly what John Doe did on behalf of ISIS. He is alleged to have made several pro-ISIS tweets and searched frequently for beheading videos during the weeks immediately before he entered Syria. The government also uses more speculative hearsay from Kurdish forces. “According to [Syrian Democratic Forces] interviewed,” said one filing, “there would be no reason for a foreigner to be in this area unless he were supporting ISIL.” The government also claims to have an internal ISIS document listing Doe as a “fighter”—though that’s hardly the same as evidence of actual fighting.
At the hearing in November, Kathryn Wyer, a lawyer for the Justice Department, said the government is still considering what to do with Doe, and that U.S. law gave it a “reasonable period of time” to detain him without charge. How long that period might be is an open question. The judge in the case, Tanya Chutkan, pressed the government to declare whether Doe had been advised of his constitutional rights. “He’s a U.S. citizen, and it’s been two and a half months, and you can’t tell me whether he’s been advised of his rights?” she asked. “I would like to know how long you think you get to do this to an American citizen.”
The Trump administration later confirmed that FBI agents had informed Doe of his right to remain silent and that Doe had expressed his desire to have an attorney present during questioning. “The agents explained that due to his current situation, it was unknown when he would be able to have an attorney,” the administration’s lawyers stated in court filings. “The individual stated that it was OK and that he is a patient man.”
Given Trump’s expressed desire to resume some of the most aggressive practices of the war on terrorism—he has called for reviving the use of torture and filling Guantánamo with “some bad dudes”—Doe may continue waiting indefinitely unless the courts intervene. Obama at least acknowledged some theoretical limit to the government’s authority under the AUMF. The AUMF “does not authorize the president to use force against every group that commits terrorist acts,” the Obama administration stated in 2016. Trump, on the other hand, seems committed to the broadest possible interpretation. “If the enemy hopes we are going to quit on a certain day, or if they know we won’t deal with them if they step over a certain border, then the enemy is going to do exactly that,” said Defense Secretary Jim Mattis, in a Senate hearing last October. The implication is that the AUMF gives Trump the right to go after anyone he wishes, in any way he deems fit, so long as there are allegations that they have some connection to terrorism.
More significant, however, is the question of whether the entire U.S. operation against ISIS is illegal. The ACLU argues that Doe’s detention is unlawful, not solely because he is an American citizen but because the 2001 AUMF doesn’t apply to the conflict against ISIS in Syria today. “It’s inconceivable that the government can hold him under a statute that targeted those responsible for the 9/11 attacks,” said Hafetz.
This is the same argument, of course, that critics of Obama made about the military operations in Libya and Syria. But Congress must also shoulder a portion of the blame for why the 2001 AUMF has been allowed to persist for so long. In 2014 and 2015, after Obama outlined his justifications for the war on ISIS, he repeatedly asked Congress for a specific authorization for the conflict. In February 2015, he even sent Congress draft legislation that would authorize the use of force against ISIS while also establishing certain limits. The authorization would expire after three years, unless Congress renewed it. And it would prohibit “enduring offensive ground combat operations.” “I remain committed to working with Congress and the American people to refine, and ultimately repeal, the 2001 AUMF,” Obama said.
Yet it became clear that lawmakers—even those like Congressman John Boehner, the Republican speaker of the House, who had loudly demanded that Obama seek formal congressional authorization—were in no hurry to take up Obama’s proposal or pass an alternative. Their reluctance may have stemmed in part from the fact that Obama had made it clear that, while he preferred to fight ISIS under a new AUMF, he would make do with the old one. But a larger reason the 2001 AUMF has remained in place for so long is that few members of Congress are eager to return to the days of casting public votes on individual military actions.
John Kerry and Hillary Clinton had both voted to authorize the Iraq invasion and were often chastised for it during their respective presidential campaigns. Obama, as an Illinois state senator, got to oppose the war without having to cast a vote either way. Some Republicans, meanwhile, seem to be afraid of seeming insufficiently hawkish if they limit what the military can do in the face of the intelligence community’s ever-louder drumbeat of global threats. In the end, leaving matters of war and peace to the White House may be good politics—but bad policy—for both parties. “The AUMF is one of those issues that comes up periodically, but it never really gets out of the gate,” a Senate staffer told me.
Trump, however, has been attempting to push the application of the AUMF even further than his predecessors. He has used its auspices to double the number of U.S. troops in Somalia, send thousands of additional forces to Afghanistan, and order significant increases in personnel in Syria and Iraq. According to the Pentagon, the number of U.S. troops in Syria has quadrupled to roughly 2,000 since Trump took office. Human rights organizations claim that Trump’s loosening of the legal standards for drone strikes has led to a substantial uptick in civilian casualties.
Moreover, the Trump administration has been setting the stage for an even more prolonged campaign in Afghanistan and Syria. Today, ISIS has lost its stronghold in the city of Raqqa and controls only small pockets of territory. Nevertheless, Trump has said he wants U.S. troops to remain in Afghanistan for the long term. “A hasty withdrawal,” he argued, “would create a vacuum for terrorists, including ISIS and Al Qaeda.” Rex Tillerson, Trump’s now-departed secretary of state, used the same argument to justify a continued U.S. presence in Syria.
There is also the possibility that Trump could decide to take the fight directly to Bashar Al Assad’s regime, as he did last April with a missile strike against a Syrian airfield. In early February, there were further indications that Trump was eager to battle the Syrian government, when U.S. planes fired on pro-regime forces attempting to move into Kurdish-held territory east of the Euphrates River. Even as the original rationale behind the 2001 AUMF fades into history, the law’s broad powers are now in the hands of a president who is committed to a maximalist interpretation. “We’ve been fighting these wars for longer than any wars we’ve ever fought,” Trump said, in a speech at CIA headquarters the day after his inauguration. “We have not used the real abilities that we have. We’ve been restrained.”
The administration’s legal argument linking the anti-Assad strikes to the AUMF is supposedly contained in a seven-page memo the White House has refused to release—drawing the ire of Senator Tim Kaine. “The actions you are considering far exceed the counter-ISIS mandate,” the Virginia Democrat wrote in a letter to Tillerson in December. “Have you deemed that Syrian government and pro–Syrian government forces are Associated Forces of ISIS pursuant to the 2001 AUMF?” Such an interpretation would mark an unprecedented expansion of the president’s AUMF powers.
Lawmakers have also worried that Trump might use the secret memo as cover for a “bloody nose” strike against North Korea. The president has repeatedly claimed the ability to go to war with North Korea on his own say-so. It’s possible that he believes his threats will give him more leverage at the proposed talks with Kim Jong Un. But, given Trump’s unpredictability, the threat of war may also be more than a bluff.
In October testimony before the Senate Foreign Relations Committee, Tillerson cited Ronald Reagan’s 1986 airstrikes against Libya as an example of what he considers to be the president’s power “to use military force in certain circumstances to advance important U.S. national interests.” If Congress issues a new AUMF, Tillerson said, it must contain no temporal or geographic constraints. Whereas Obama encouraged Congress to reassert control, Trump appears to want to institutionalize the status quo of the president holding the reins of a limitless and borderless “forever war.”
The last serious attempt to pare back the president’s AUMF authorities came from Kaine and Senator Rand Paul, who attempted to replace the 2001 AUMF with a narrower authorization to combat Al Qaeda, the Taliban, and ISIS. The measure failed 61 to 36 last September—right around the time that John Doe surrendered in Syria.
Now the courts may wind up forcing Congress to act. If the ACLU prevails in Doe’s case, and the courts find that the AUMF does not apply to the ISIS campaign, Congress would likely have to pass a more specific authorization in order to allow U.S. troops to continue fighting the remnants of ISIS in Syria. And Congress is unlikely to give the Trump administration the same blank check that it gave the Bush administration after the September 11 attacks.
“The Trump administration has failed to explain what our goals are for what Secretary Tillerson has described as an indefinite military presence in Syria,” said Representative Seth Moulton, a Democrat from Massachusetts who has been a longtime critic of the 2001 AUMF. “That is morally wrong for our country, and, most especially, for our troops. We shouldn’t be asking anyone to risk his or her young life for goals we can’t even describe.”
It’s unlikely that a new AUMF would succeed in tempering America’s interventionism, a postwar tendency that seems immune to repeated failures. Congress failed to do its job and stand in the way of the Vietnam and Iraq debacles; it’s hard to imagine that repealing the current AUMF will completely succeed in preventing another catastrophe. But it’s possible that a new AUMF could accomplish what the last two presidents have not, by forcing debate over the war on terrorism into the open and winnowing its parameters down to specific places and smaller campaigns.
Retiring the AUMF’s expansive and outmoded language would also help close a dark chapter in American history, given the number of abuses at home and abroad that those 60 words have been used to justify. If America ever wants to live down the worst practices of the September 11 era—the mass surveillance of its citizens; the “forever prisoners” of Guantánamo; the secret and still-unacknowledgeable wars; the notion that the White House can unilaterally target and kill a U.S. citizen without input from Congress or the courts; the wholesale redlining of the Constitution’s Fourth, Fifth, and Eighth Amendments—it can begin by deleting the writ that was used to justify all of those abuses as well as whatever else, we will one day discover, is taking place today.