Article by Tyler Takemoto,
Announced last month, the US withdrawal from Northern Syria raises a complex set of issues implicating the United States’ obligations to its military allies abroad. In the context of executive power and due process, the decision to withdraw military forces will likely reignite the legal debate about due process rights of US and European citizens in military detention and the scope of the 2001 and 2002 Authorizations to Use Military Force (AUMFs).
The US partnered extensively with the Kurdish Syrian Democratic Forces to enact its military offensive against the Islamic State. As part of this partnership, the Syrian Democratic Forces (SDF) have maintained several wartime detention sites that currently hold about 11,000 people designated as ISIS fighters. Roughly 2,000 of the people detained are foreign nationals, including European and potentially US citizens. A legal approach to administering justice for the people detained remains unclear. With waning US support for the Kurdish forces in Syria that maintain the detention sites and increasing likelihood that those detained will face transfer to different parties, the question of US and European states’ obligation to uphold their citizens’ due process rights becomes increasingly urgent.
Due process requires that alleged members of Islamic State are afforded fair and rigorous trials through proper legal channels. Observers including Human Rights Watch have expressed concern that detainees transferred from Syria to face prosecution in Iraq have lacked access to fair trials and have experienced serious mistreatment, including torture and summary execution. Nevertheless, European states have proved reluctant to repatriate alleged Islamic State combatants and try them in domestic courts. French officials, for example, recently requested Iraq take on the responsibility of detaining and trying the approximately 60 French nationals currently held in Syria. The UK government revoked citizenship of two British nationals in SDF custody, and for over a year opposed their repatriation for trial. Last month, the SDF transferred them to US military custody where they currently face potential prosecution in the UK or the US in the Eastern District of Virginia.
In the US, military detention of citizens allegedly involved with the Islamic State implicate fundamental questions of executive power and constitutional rights. Doe v. Mattis, a habeas case filed on behalf of a US citizen in military custody and concluded in October 2018 upon his release to Bahrain, explored the issue of due process for military detainees in the conflict against ISIS. However, the D.C. District and Circuit courts adjudicating the case avoided broader questions about executive authority. In particular, the courts did not resolve whether the 2001 and 2002 AUMFs apply to ISIS or whether the US can de facto expatriate citizens for alleged involvement with terrorist groups.
Withdrawal from Northern Syria will likely force these questions back to the forefront as an influx of transferred European and possibly US nationals enter United States military custody. In determining how to respond, courts have an opportunity to reaffirm due process rights for people in military detention. More broadly, they can invite Congress to affirmatively assert its role in ensuring the administration’s military action accords with international humanitarian law, the Constitution, and collective values of dignity and justice.