“Co-belligerency,” published by the Yale Journal of International Law, relied upon by the ACLU in challenge to the military detention of a US citizen.
The American Civil Liberties Union (ACLU) cited Associate Professor Rebecca Ingber’s 2017 article, “Co-belligerency,” in a brief supporting a habeas corpus petition filed on behalf of a dual US-Saudi Arabian citizen being held in military custody in Iraq. The government alleges the unnamed citizen was a member of the Islamic State in Syria and has been detaining him since September 2017.
The ACLU is challenging the government’s detention authority in Doe v. Mattis, in the US District Court for the District of Columbia. Citing Ingber’s research, defense lawyers contend that the 2001 Authorization for Use of Military Force (AUMF) does not extend to ISIS, as the government has been arguing since 2014. Specifically, Doe v. Mattis is the first case to force judicial review of the government’s extension of the AUMF to ISIS. The government’s reliance on “co-belligerency” as a legal theory for extending the AUMF to ISIS means that the court will need to grapple with the very questions that Ingber examines in “Co-belligerency,” published by the Yale Journal of International Law.
In her paper, Ingber reviews how recent US administrations have used co-belligerency, a theory professedly derived from international law to justify an aggressive interpretation of their authority to use of force against terrorist groups under the 2001 AUMF.
Under the government’s theory, co-belligerency determines whether a group can be classified as a target of the 2001 statute based upon its ties to the direct targets of that statute-al Qaeda and the Taliban. The executive branch thus interprets the president’s authority to use force under the AUMF to extend to terrorist groups that were not referenced in the 2001 authorization, even to groups that did not exist at the time the authorization was passed.
While the courts and Congress have relied upon executive branch declarations that its use of the co-belligerency theory is firmly grounded in legal precedent, Ingber argues that it in fact remains imprecise and undefined, that its international law content does not match the domestic law purpose for which it is employed, and that the other branches have not engaged in sufficient scrutiny of the executive’s position.
In what Ingber calls a “grey-ish legal space,” the domestic powers of the executive branch are neither clearly circumscribed nor entirely lawless. The executive branch has won for itself significant discretion under the AUMF through this interpretation, and yet has until now remained constrained by it as well.
“Co-belligerency” was recently named a co-recipient of the Mike Lewis Prize for National Security Law Scholarship by the Robert S. Strauss Center for International Security and Law at the University of Texas at Austin and Ohio Northern University’s Pettit College of Law (ONU), with the consultation of the American Association of Law Schools (AALS) Section on National Security Law.
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