Continuing the analysis of possible Art. I authority for applying the Material Support of Terrrorism statute to three Somali nationals fighting on behalf of al-Shabab in Somalia, with no identifiable link to the U.S. – other than being brought here for trial.
The U.S. is not at war with Shabab. They are at war with our pals, Somalia’s notional Transitional government, in a civil war to which we are not a party. It is important to distinguish enemies in the “really hate” sense to war in the constructive or declarative sense.
True, Shabad has aligned itself with Al-Queda. Do the War Powers allow banning anyone in the world from fighting in a conflict to which the U.S. is not a party, but on behalf of a force sympathetic or allied with forces hostile to the U.S.? I don’t know, but my first reaction is that is a stretch. By such logic one could say that the ACA, by making healthier Americans, would make for better soldiers.
Note how this discussion recapitulates government’s move in Hamdan II: first it the argued “material support” rule was an exercise of Offenses Clause powers, then in last minute downgraded D&P to second-stringer, and brought out the general war powers for Art. I support.