The White House is finishing an executive order that would instruct the Pentagon to send Islamic State detainees to Guantanamo Bay.
The Obama administration notably refused to send ISIS fighters captured in the fight to the detention facility, but for President Donald Trump, it’s imperative to take high-level radical Islamic terrorists out of the fight, The New York Times reports.
For some, the order could function as a de facto tripwire because it could allow federal judges to rule on whether the war against ISIS is actually legal, since Congress has declined to offer any explicit authorization. Instead, the Obama administration has relied on war authorization granted in 2001, saying that the fight against ISIS is just a continuation of the fight against al-Qaida and the Taliban.
Such a claim is tenuous at best, mostly because while the seeds of ISIS first arose through al-Qaida, the group has since become so utterly different from its patriarch that it makes sense to distinguish them as two separate organizations. And if the organizations are deemed separate, it’s unclear how the 2001 war authorization would extend to ISIS, experts say.
“It raises huge legal risks,” Harvard Law professor Jack Goldsmith told The New York Times. “If a judge says the Sept. 11 authorization does not cover such a detention, it would not only make that detention unlawful, it would weaken the legal basis for the entire war against the Islamic State.”
An Army captain tried to sue former President Barack Obama in 2016, arguing that the war against ISIS is illegal, but his complaint was dismissed by a federal judge who said that he lacked standing for his lawsuit.
In spite of such issues, the principal reason why the Obama administration had to rely on dodgy legal arguments to carry out the war against ISIS is because Congress was extremely reticent to forward a new war authorization, as many members thought it would constitute a full endorsement of Obama’s foreign policy. And for Republicans, Obama’s foreign policy in the Middle East was far from exemplary, to put it mildly.
“[W]hen it comes to Obama and his red lines and his flub-ups he’s had internationally, I hate to be seen giving him the authority or green light or my vote to do anything because I have no confidence in him at all in that theater,” GOP Rep. Tom Rooney said in early 2016, according to Politico.
So even if federal judges rule that the legal argument the Obama administration relied on is specious, Trump may be able to successfully seek war authorization from Congress, given that Republicans may be more willing to throw their weight behind the foreign policy of a GOP president.
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