Questions Senators Should Ask at the AUMF Hearing Regarding the US Citizen Enemy Combatant

By Robert Chesney
Friday, October 20, 2017, 12:19 PM

On October 30th, the Senate Committee on Foreign Relations will hold a hearing titled "The Authorizations for Use of Military Force: Adminstration Perspective," featuring Secretaries Mattis and Tillerson. This is a good thing. We should have an updated AUMF. But, failing that, we should at least have regular and serious hearings in which Congress elicits information about how the President currently construes these authorities.

The obvious questions on which to focus concern just who is covered by the 2001 and 2002 AUMFs (which organizations are "in," and what individual status or conduct counts). But I'm writing to urge attention to another AUMF-based matter: the US citizen whom we are holding as an enemy combatant in Iraq, based on his apparent role as an Islamic State fighter in Syria.

Senators should explore this situation as much as the open setting permits. Possible questions to ask include:

  • Is this person still under the physical control of the U.S. military? If not, who has custody of him and when did this change take place?
  • If in U.S. military custody, is the basis for that custody still that he is an enemy combatant subject to detention under the AUMFs + NDAA FY'12?
  • If so, does the administration take the position that it can continue to hold the person in that status for such time as the associated armed conflict continues?
  • Does the administration accept that an American citizen in this position has the right to seek relief in federal court via a habeas corpus petition?
  • If so, does the administration accept that it must either provide the detainee with access to counsel, or provide notice of his detention to his next of kin, in order that the habeas right can be pursued?
  • If so, when does the administration believe that such an obligation attaches?
  • If this person is to remain in military custody for the long term, is the administration considering removing him from Iraq? If so, what are the available options?
  • Media reports suggest that some thought has been given to transferring this person to Iraqi custody, to face prosecution. Is this true, and if so what is the state of that discussion. Obvious questions about how the person might be treated follow from this.
  • Media reports suggest that there is a preference for bringing the person to the United States for prosecution, but it is proving hard to assemble admissible evidence. Is this so, and can you elaborate on the nature of the problem?
  • Media reports suggest that the person's tie to the United States is a matter of having been born here, but that the person grew up elsewhere and likely is a citizen of and has most if not all of his ties to some other country. Why can't the person simply be repatriated to the custody of that government?

It does seem to me that this situation is not one the administration sought out, and the available information suggests they are working to find a sensible resolution in a difficult spot. Questions along these lines need not be hostile, but some such questioning is certainly appropriate and needed.