Detaining ISIS: Habeas and the Phantom Menace

80 Pages Posted: 12 Oct 2018 Last revised: 22 Apr 2019

See all articles by Ernesto Hernandez Lopez

Ernesto Hernandez Lopez

Chapman University, The Dale E. Fowler School of Law

Date Written: September 22, 2018

Abstract

The United States detained “John Doe,” an American citizen, in Iraq without charges for over a year. He was released in October of 2018. Challenging this detention, Doe filed a habeas petition. He argued that the detention was illegal because statutory authority is needed to detain citizens, and military detention depends upon Congress formally authorizing the anti-ISIS conflict. Doe contended that these conditions did not exist. The United States argued that the detention was legal because Doe was an enemy combatant that supported ISIS in Syria. This case, Doe v. Mattis, raised significant constitutional questions about citizens, executive detention, and deference in national-security and foreign-relations matters. But much more remains at stake in terms of overseas power and military force.

This Article argues that Doe’s prolonged detention is the expected result of legal ambiguities of American authority overseas. Extraterritoriality questions force courts to determine what law applies outside domestic borders. Doe v. Mattis continued inquiries from Guantánamo detentions. A decade ago, the focus was on Al-Qaeda, the Taliban, and alien detainees in territory under American control. Doe v. Mattis posed subsequent issues regarding executive power, citizen detention, overseas habeas rights, and whether Congress authorized the ISIS conflict. This Article uses post-colonial and TWAIL (Third World Approaches to International Law) perspectives to examine military detention. These perspectives identify how prior legal reasoning shapes overseas authority. With Doe v. Mattis’s rulings on executive power, military detention can adapt for new conflicts with changing enemies and no envisioned end.

Keywords: Doe v. Mattis, National Security, War on Terror, ISIS, TWAIL, Military Detention, Habeas, Citizenship, Enemy Combatants, Constitutional Law, Empire, Post-Colonial

Suggested Citation

Hernandez Lopez, Ernesto, Detaining ISIS: Habeas and the Phantom Menace (September 22, 2018). Oklahoma Law Review, Vol. 71, 1109-1187 (2019), Available at SSRN: https://ssrn.com/abstract=3253661

Ernesto Hernandez Lopez (Contact Author)

Chapman University, The Dale E. Fowler School of Law ( email )

One University Drive
Orange, CA 92866-1099
United States

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