Rebecca Ingber’s Scholarship Cited in ACLU Brief in 多伊诉马蒂斯案
“Co-belligerency,” published by the 耶鲁国际法杂志, relied upon by the ACLU in challenge to the military detention of a US citizen.
The American Civil Liberties Union (ACLU) cited Associate Professor Rebecca Ingber’s 2017 article, “Co-belligerency,” in a brief supporting a habeas corpus petition filed on behalf of a dual US-Saudi Arabian citizen being held in military custody in Iraq. 政府声称，这名未透露姓名的公民是叙利亚伊斯兰国的成员，自2017年9月以来一直被拘留。
The ACLU is challenging the government’s detention authority in 多伊诉马蒂斯案, in the US District Court for the District of Columbia. Citing Ingber’s research, defense lawyers contend that the 2001 Authorization for Use of Military Force (AUMF) does not extend to ISIS, as the government has been arguing since 2014. Specifically, 多伊诉马蒂斯案 is the first case to force judicial review of the government’s extension of the AUMF to ISIS. The government’s reliance on “co-belligerency” as a legal theory for extending the AUMF to ISIS means that the court will need to grapple with the very questions that Ingber examines in “Co-belligerency,” published by the 耶鲁国际法杂志.
在她的论文中，Ingber回顾了最近几届美国政府是如何利用共同作战的，这是一种据称来自国际法的理论，以证明他们在2001年AUMF下对恐怖组织使用武力的权力的侵略性解释是合理的。
Under the government’s theory, co-belligerency determines whether a group can be classified as a target of the 2001 statute based upon its ties to the direct targets of that statute-al Qaeda and the Taliban. The executive branch thus interprets the president’s authority to use force under the AUMF to extend to terrorist groups that were not referenced in the 2001 authorization, even to groups that did not exist at the time the authorization was passed.
While the courts and Congress have relied upon executive branch declarations that its use of the co-belligerency theory is firmly grounded in legal precedent, Ingber argues that it in fact remains imprecise and undefined, that its international law content does not match the domestic law purpose for which it is employed, and that the other branches have not engaged in sufficient scrutiny of the executive’s position.
In what Ingber calls a “grey-ish legal space,” the domestic powers of the executive branch are neither clearly circumscribed nor entirely lawless. 行政部门通过这一解释在AUMF下为自己赢得了重要的自由裁量权，但直到现在仍然受到它的限制。
“Co-belligerency” was recently named a co-recipient of the 迈克·刘易斯国家安全法奖学金 by the Robert S. Strauss Center for International Security and Law at the University of Texas at Austin and Ohio Northern University’s Pettit College of Law (ONU), with the consultation of the American Association of Law Schools (AALS) Section on 国家安全法.
