DOJ sent out a notice earlier today involving yet another ISIL-related material support case, this one involving a California man who had hoped to get to Syria in order to join ISIL (United States v. Dundach). He has pled guilty to one false-statement charge, and one charge of material support to ISIL in violation of 18 USC 2339B. All of which is interesting in itself, if only as (i) another example in the wave of similar cases from recent months and (ii) another example of a prevention-oriented, terrorism-related case amply handled by the civilian criminal justice system. But I'm posting on it now because of an obscure feature of the case that could have (but did not) precipitated a judicial ruling on a question that previously has generated attention only in connection with the 2001 AUMF: Does ISIL properly count as al Qaeda, as the administration has claimed in the AUMF context?

The Dundach case implicates that question not as to the AUMF, but instead as to the State Department's process for formally designated certain groups as foreign terrorrist organizations. Once so designated, it becomes a crime to provide material support to the group under 18 USC 2339B (and it thus is not necessary to show the defendant intended that the support be used to facilitate certain specific types of crimes as is required under 18 USC 2339A). As I understand it, ISIL received its designation in May 2014, in a move that formally replaced the preexisting designation of al Qaeda in Iraq. Well, some of Dundach's conduct pre-dated that change, and some of it post-dated the change. In light of that latter fact, Dundach was unlikely to get anywhere in challenging the relevance of 2339B. But what if his conduct in support of ISIL had entirely pre-dated the switch? He then might have moved to dismiss the charge, arguing that ISIL was not AQI at the time of his conduct. This would have created an opportunity for a judge to weigh in on a version of the inheritance/organic-successor argument that has been central to the administration's claim that the 2001 AUMF applies to ISIL.

It's not the exact same question, to be sure, but it is closely-related. Now, to be clear, I'm not suggesting that the right answer is that ISIL had ceased to count as AQI in late 2013-early 2014. I think a judge most likely would reject that argument, in fact. Still, it would be interesting if it were to be litigated in a criminal case; it certainly is not going to be litigated as to the AUMF, it seems.

From DOJ’s press release on Dundach's guilty plea: