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William & Mary Law Review Online

Abstract

This Note proposes that the current legal authority the United States relies on to detain U.S. citizens captured as enemy combatants—the 2001 AUMF—does not provide an adequate justification for the detention of Islamic State fighters who are U.S. citizens. This Note argues that despite a marriage of convenience, the Islamic State’s organizational and operational differences from al-Qaeda make it a factually distinct organization. Because the Islamic State and al-Qaeda are two different entities, the Islamic State falls outside the scope of the 2001 AUMF. Thus, the 2001 AUMF should not apply to the detention of U.S.-citizen Islamic State fighters because the government’s detention authority rests on the Islamic State falling within the purview of the 2001 AUMF.

The idea of an updated AUMF has long been discussed as an appropriate measure to continue operations against the Islamic State.This Note proposes that because the Islamic State and al-Qaeda are factually distinct organizations, Congress must pass a new AUMF that specifically includes the Islamic State in order to justify detaining individuals like Doe. This Note explores three principles that would best help execute an Islamic State-specific AUMF and justify current and future detentions of U.S.-citizen Islamic State fighters: (1) an explicit reference to the Islamic State in the AUMF’s language; (2) the inclusion of a sunset clause; and (3) a provision requiring reports to Congress. The addition of these provisions to an Islamic State-specific AUMF would resolve any ambiguity over whether a new AUMF extends to the Islamic State and, as a result, whether there is a justifiable legal basis for the detention of its members.

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