The lack of clear authorization for the use of military force (AUMF) against the Islamic State could lead to the US, once again, rendering people accused of extremist activity to jurisdictions permitting torture.
The prospect of such a scenario was brought up on Tuesday by John Bellinger III, a private sector lawyer who served as a legal adviser for the National Security Council under George W. Bush, while the War on Terror was ramping up.
“Right now, they have the right to habeas if they’re in Guantanamo,” Bellinger said, referring to a 2008 Supreme Court decision. The ruling held that detainees at the military prison in Guantanamo Bay, Cuba, had the right to demand the legal justification for their imprisonment.
“If they’re held somewhere else—in Iraq, or elsewhere—it’s not clear they would have the right to habeas,” Bellinger added.
Bellinger made the remarks as an expert witness before the Senate Foreign Relations Committee. He mentioned the possibility of detainee transfer in response to a question from Sen. Todd Young (R-Ind.)
Footage obtained by ABC News last month showed Iraqi military officers ordering the torture and execution of detainees accused of assisting the Islamic State.
The committee had assembled on Tuesday to explore the need for an Islamic State-specific AUMF.
Both the Obama administration and the Trump administration have relied on the post-9/11 authorization to target the extremist group in Iraq and Syria.
The nearly 16-year-old legislation permits the military to target those who “planned, authorized, committed, or aided the terrorist attacks” that took place on September 11, 2001. The Islamic State did not exist at the time.
Bellinger brought this up throughout Tuesday’s hearing, pointing out that the 9/11-specific language would make it difficult for US forces to detain and try Islamic State fighters.
If Bellinger’s work experience is any indication, this legal problem can be sidestepped through outsourcing. There were at least 136 detainees subject to extraordinary rendition under the Bush administration, according to the Open Society Foundation.
Some were sent to be held in countries, like Egypt and Syria, where detainees are subject to torture by state forces. Some were sent to CIA-run prisons known as “black sites.”
In one interview, aired by PBS in 2007, Bellinger defended this practice, including the rendering of alleged Al-Qaeda members who the US couldn’t blame for “a particular crime.”
“What do you do with these people?” he asked. “Let them go? Let them disappear? This is the conundrum that we have.”
In testimony submitted for the written record, Bellinger noted that, throughout the entirety of the Bush administration, he “engaged on an almost daily basis in discussions about legal issues relating to the use of military force, including detention, arising under both AUMFs.”
