(Bloomberg Opinion) -- American allies in Syria have reportedly captured a U.S. citizen who sent his resume to Islamic State and then went to work for them — as an English teacher. The problem of what to do with an American member of the militant group has arisen before. Now, there’s a twist: A civilian who genuinely volunteered to go to Islamic State’s caliphate and who genuinely worked there only as a civilian probably can’t be treated as a prisoner of war.
Instead, the main legal option would be to return him to the U.S. and put him on trial for material support of terrorism.
For better or worse, the U.S. Supreme Court has held that someone can be convicted of the crime of material support just by teaching English in coordination with a terrorist group, even if that person never went near a weapon or battlefield. In this instance, however, the best legal option may not be a very good fit for the American’s conduct.
Warren Christopher Clark is just the most recent of several Americans who went to the Islamic State caliphate to join in some fashion and were subsequently captured by U.S.-allied forces in Iraq or Syria.
One, Mohamad Jamal Khweis, was captured at the end of President Barack Obama’s administration. He was brought back to the U.S. and tried for the federal crime of material support of terrorism. At trial, the Department of Justice introduced evidence that Khweis trained with Islamic State as a fighter and volunteered to be a suicide bomber. He was convicted by a jury in June 2017 and sentenced to 20 years in prison.
Another, called John Doe in court documents, but identified by the New York Times as Abdulrahman Ahmad Alsheikh, underwent a different, stranger process. Alsheikh was captured in September 2017, after Donald Trump had become president. He was detained by the U.S. military for 13 months at a facility in Iraq.
Alsheikh’s lawyers, who challenged his detention, maintained that he had gone to Syria as a freelance journalist, been captured by Islamic State, and then involuntarily served as an administrator and oil-field guard. The U.S. detained him as an enemy combatant — then remarkably freed him in October, taking away his U.S. passport but not his American citizenship. Alsheikh also holds Saudi citizenship.
It’s not certain why Alsheikh was freed rather than returned to the U.S. for trial. One explanation is that prosecutors weren’t sure they could prove that he voluntarily joined Islamic State. Another possibility is that the prosecutors realized they might not be able to use any evidence gleaned from interrogating Alsheikh while he was in military custody.
Clark’s case is distinctively interesting because, if the documents are to be believed, he voluntarily went to work for Islamic State — but not as a fighter. What we know about Clark’s involvement comes from a February 2018 report by the George Washington University Program on Extremism. The report includes a facsimile of an application letter that Clark sent to Islamic State officials, using the name Abu Muhammad al-Ameriki.
In the letter, Clark said he was seeking a position “teaching English to students in the Islamic State.” He apparently attached his resume, which included working as a substitute teacher in Texas.
If Clark only ever taught English inside the Islamic State, it’s doubtful that the U.S. government could lawfully detain him as an enemy combatant or a prisoner of war. Under the laws of war, a combatant must be a member of an armed group. Teaching English doesn’t make you a combatant, unless you are doing it as part of an army.
It would in theory be possible to argue that Islamic State should be conceived only as a military entity, so that anyone doing anything at all with the state would become a combatant. But that seems to overstate the case, considering that the group held and administered territory. A garbage collector who worked for the Syrian government and then continued to pick up the trash under Islamic State control was not a combatant.
Of course, if Clark joined in order to teach English to military trainees, and did so, that would probably qualify him as a combatant who could be detained. But he would still be entitled to a hearing before a combat status review tribunal, where he could contest any assertion that he was a combatant.
Americans have never been put in the military prison at Guantánamo Bay, Cuba — and, in any case, by law no one may be transferred from Guantánamo to the U.S. So Clark’s not going there.
What that leaves for the U.S. is either to let Clark go or to bring him home for trial. Unlike Alsheikh, Clark seems to have no other citizenship; the U.S. can’t just take away his passport and drop him in a third country.
Politically, it seems unlikely that the Trump administration would bring Clark back to the U.S. and set him free. That means a criminal charge of material support for Islamic State.
Under the Supreme Court’s decision in the landmark 2010 case of Holder v. Humanitarian Law Project, an act that would be First Amendment protected — like teaching English — can be made illegal if it is done in coordination with a designated terrorist group like Islamic State. Clark can be convicted on the basis of his application letter, assuming it’s admissible as evidence, plus any further evidence of what he did for the militant group when he actually joined.
Does Clark deserve the long prison sentence that he will probably get? Without knowing more about the circumstances of his teaching, it’s hard to say. But it seems at least possible that there is a mismatch between what the law essentially requires to happen to Clark and the morally appropriate response to someone who volunteered to do peaceful work for an evil regime.
In a perfect world, it would be possible to calibrate Clark’s punishment to his actual conduct. That seems unlikely in the world where we actually live.
To contact the author of this story: Noah Feldman at firstname.lastname@example.org
To contact the editor responsible for this story: Stacey Shick at email@example.com
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Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”
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