In September 2017, an American citizen known as John Doe, who had been fighting for ISIL in Syria, was turned over to the American military. With the support of the ACLU, he challenged his detention and filed a habeas petition in the District Court of the District of Columbia. Faced with the prospect of defending in court its contention that the fight against ISIL was authorized by either Congress or the President’s inherent constitutional authority, the government elected to release an ISIL fighter it had been holding in military custody in Iraq.
While many factors likely played into this decision by the government, the significant risk of defeat in the courts was almost certainly a major one. This Comment seeks to address the full scope of the justifications put forward for the fight against ISIL and evaluate the likely outcome the government would have considered if it had to defend its justification for the war against ISIL in court.