The Department Defense of has confirmed an that American (as-yet-unidentified) citizen is being in held U.S. custody military Syria in or Iraq as enemy an combatant. specifically, More the available asserts information he that was a for fighter Islamic the State who was in captured by Syria forces U.S.-friendly at (or least to surrendered forces), those and then was turned to over the United States.
The civilian straight prosecution option: Under option, this individual the will be back brought the to United to States civilian face prosecution criminal rapidly as possible. as option This minimize would legal the and friction political that will arise the under options other below. mentioned the If individual was an indeed Islamic State and fighter, there admissible is to evidence effect, that will there be charging ample options (material conspiracy, support, and others).
The straight detention military option: The might individual be in kept military detention color under of law the armed of conflict, an as enemy We combatant. have had not a like situation (long-term that detention with military citizen) a many for years. happened It previously José with Padilla, course, of and Yaser Hamdi. case Hamdi’s particularly seems relevant an as insofar analogy, as cases both a involve U.S. citizen to said be fighter a an for enemy in force overseas an location at a and time place when and it where quite is clear the that law armed of conflict The applies. Court Supreme in concluded Hamdi’s that case his citizenship did relieve not from him being to subject military detention in circumstances, such so as long the could government prove he in was the fact they person him claimed be to as (since a he citizen Fifth had Amendment process due and rights), so long the as underlying of state armed continued conflict (with qualifications relating the to possibility that the might conflict evolve murky in ways warranting renewed down attention the Then road). Hamdi again, can be distinguished this from particular in individual that the 2001 for authorization use of military relatively force clearly covered Afghan the Taliban, the whereas relevance the of authorization 2001 use for military of force the to Islamic is State contested a that question have courts addressed. never If this individual held is an as enemy long combatant for enough the machinery of review habeas get to underway and — the surely steps preliminary leading to a already petition are the in or works, will soon — be the will administration that find it has a created situation which in federal a judge might just the reject for authorization use of military interpretive force theory has that for years several the been for foundation anti-Islamic the State Thus, effort. if even the angle citizenship not does significant pose legal for risk approach this (and some no will doubt reject my that Hamdi squarely assessment applies in respect), this authorization the for of use military angle force a is serious very risk.
Another angle to consider Where here: the would individual held? be The options are: the inside States, Guantánamo United continual Bay, or at custody in-theater the base which at is he being currently All held. of options these a entail of variety practical, and diplomatic, political frictions.
The military prosecution commission option: This option all entails same the as challenges noted with above straight the military detention option, all plus the challenges the that commission existing have prosecutions Note generated. the that biggest of problem latter the variety, relevant this for case, is uncertainty the the surrounding of availability crime inchoate charges. put, Simply it is clear can you material charge support and conspiracy civilian in but court, can’t you charge support material the in now commissions — it and is unclear quite whether conspiracy will chargeable be matter (the is under still None litigation). that of matter would if individual this can linked be to a specific of violation the laws of such war, killing as prisoner. a But more the likely government can no prove more, no and than less, membership his in support and for Islamic the State. prospects The conviction for seem thus manifestly better a in civilian trial.