The Deep State is not out to get the President. In fact, it doesn't really exist.
Rebecca Ingber is an Associate Professor of Law at BU Law. She teaches and writes about international law, foreign relations law, national security, war powers, and executive branch decision-making. She previously served for six years in the Legal Adviser's Office at the U.S. Department of State, and held fellowships at Columbia Law School and with the Council on Foreign Relations. She graduated from Yale College and Harvard Law School, and clerked for Judge Robert P. Patterson, Jr., of the Southern District of New York.
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In the short term, the bureaucracy will surely slow Donald Trump down and impede some of his plans. But intra-executive branch forces are not enough to protect against executive overreach; in fact, over time, they expand and entrench presidential claims to power.
These kinds of advocacy lawsuits against the President in the national security arena often have perverse effects on the resulting law. The intent is generally to force constraints onto the executive branch, but the further along this lawsuit gets, the greater the risk it will result in less, rather than more, accountability and constraint on the Executive’s power.
Last week, Nathalie and I wrote about the international law questions U.S. executive officials were likely considering while contemplating the continued detention and ultimate fate of the sole known ISIS detainee, and surely must have contemplated in the lead-up to her capture. Now Shane Harris and Nancy Youssef have an article in the Daily Beast titled “U.S. Has No Idea How Long It Will Keep an ISIS Bride Locked Up,” which raises two additional questions I want to address briefly: one about pre-capture planning, and one about potential litigation.
Umm Sayyaf is only the second or third known “law-of-war detainee” under President Obama outside of the Afghan theater, and the first known detainee in the conflict with ISIL. There has been little discussion to date of the legal justification for, or the questions raised by, her capture, ongoing detention, and potential transfer or prosecution. Here are a few of the questions of international law that might be tossing around among executive branch lawyers tasked with determining her fate.