On May 7, 2018, the U.S. Court of Appeals for the D.C. Circuit blocked the transfer to an unidentified third country of a dual U.S.-Saudi national detained in Iraq as an alleged enemy combatant.Footnote 1 The decision, Doe v. Mattis, also upheld a district court order requiring the government to provide seventy-two hours’ notice before transferring him to another country.Footnote 2 In an opinion authored by Judge Srinivasan and joined by Judge Wilkins, the court emphasized that while it was “respectful of—and with appreciation for—the considerable deference owed to the Executive's judgments in the prosecution of a war,” “things are different” for alleged enemy combatants who are U.S. citizens.Footnote 3 Further proceedings in the district court could potentially address whether the U.S. military campaign against the Islamic State of Iraq and the Levant (ISIL) is lawful under U.S. domestic law.
The case stemmed from the capture of “John Doe” in September 2017 by Syrian Democratic Forces during clashes with ISIL on a Syrian battlefield.Footnote 4 After Doe was transferred to U.S. custody and detained as an enemy combatant,Footnote 5 the American Civil Liberties Union (ACLU) filed a petition for a writ of habeas corpus on his behalf in October 2017.Footnote 6 The ACLU argued that Doe had to be either criminally tried in a federal court or released, asserting that U.S. domestic law does not authorize the current military campaign against ISIL and by extension does not grant the “legal authority to detain an alleged member of ISIL.”Footnote 7 The federal district court ordered the executive branch to provide the ACLU with “temporary, immediate and unmonitored access to the detainee so that it may inquire as to whether he wishes to have [it] or court-appointed counsel continue this action on his behalf.”Footnote 8 After receiving Doe's approval for the representation, the ACLU sought a preliminary injunction prohibiting Doe's transfer to another country pending the resolution of his claim on the merits.Footnote 9 The court ordered the government to give the ACLU “seventy-two hours’ notice prior to transferring [Doe],” at which point the ACLU could “file an emergency motion contesting his transfer.”Footnote 10 During the pendency of its appeal of this order, the government gave notice of its intent to transfer Doe to the custody of an unidentified third country,Footnote 11 widely understood to be Saudi Arabia.Footnote 12 On the ACLU's motion for a temporary restraining order or preliminary injunction, the district court blocked Doe's transfer.Footnote 13 The government subsequently appealed this injunction as well, thus placing both the issue of notice and the even more significant issue of an actual transfer before the D.C. Circuit.Footnote 14
In determining whether Doe had shown a likelihood of success on the merits of his claim that the government lacked authority to transfer him, the D.C. Circuit considered two issues.
First, the D.C. Circuit addressed whether, in light of the U.S. Supreme Court's rulings in Munaf v. Geren Footnote 15 and Wilson v. Girard,Footnote 16 the government has the power to transfer a U.S. citizen, who has voluntarily left the United States, to any foreign country that has a “legitimate sovereign interest” in the citizen.Footnote 17 The government considered a foreign country to have a “legitimate” interest in a person if that country had “prescriptive jurisdiction” over that person under international law.Footnote 18 Rejecting this argument, the D.C. Circuit concluded that the government's “expansive vision of unilateral Executive power over a U.S. citizen who ventures abroad does not follow from Munaf and Wilson,” as those cases “did not involve a citizen forcibly transferred from one foreign country they voluntarily visited to the custody of another foreign country.”Footnote 19 The court continued:
[T]he fact that a foreign country may have prescriptive jurisdiction over an American citizen who is outside its territory hardly means that, as long as the citizen is somewhere else abroad, the Executive has power to seize her and deliver her to that foreign country.
Indeed, we know of no instance—in the history of the United States—in which the government has forcibly transferred an American citizen from one foreign country to another.Footnote 20
Second, the D.C. Circuit considered whether the government could transfer Doe pursuant to its constitutional authority relating to the conduct of war.Footnote 21 The court, looking to the U.S. Supreme Court's decision in Hamdi v. Rumsfeld,Footnote 22 agreed that such transfers can be permissible under certain conditions:
[T]he Executive does generally possess authority under the law of war to transfer an enemy combatant to the custody of an ally in the conflict. But that authority, we hold, could potentially support a transfer of Doe only if the government (i) demonstrates that it is legally authorized to use military force against ISIL, and (ii) affords Doe an adequate opportunity to challenge the Executive's factual determination that he is an ISIL combatant.Footnote 23
Although Hamdi concerned the government's wartime power to detain U.S. citizens as enemy combatants, the D.C. Circuit concluded that the government's “transfer authority over citizens and detention authority over citizens essentially rise or fall together.”Footnote 24 The court observed that the practice of transferring enemy soldiers in wartime is well-established.Footnote 25 It also emphasized that Congress “expressly considers transfer of an enemy combatant to be one option available to the military under the law of war,”Footnote 26 pointing to a provision of the National Defense Authorization Act for Fiscal Year 2012 (2012 NDAA) that indicates that transfer is an appropriate “‘disposition under the law of war.’”Footnote 27 While historical evidence lent little support for the specific authority to transfer U.S. citizen as enemy combatants, the court, relying on Hamdi, saw “no basis for excluding a citizen—at least as a categorical matter—from the Executive's wartime authority to transfer enemy combatants.”Footnote 28 Given the “fundamental liberty interests” at stake, however, the court concluded that, as Hamdi had held with respect to detention, a U.S. citizen facing transfer to a third country as an enemy combatant must be allowed to challenge the basis of this determination.Footnote 29
In a heavily redacted section of the opinion, the D.C. Circuit applied these principles to Doe's case and upheld the injunction against his transfer at this stage of the proceedings.Footnote 30 In its view, the government needed to establish its authority to “wage war against ISIL” and to give Doe “a meaningful chance to rebut the government's factual assertion that he is an ISIL combatant, per the requirements set out in Hamdi,” and had as yet failed to do so for both conditions.Footnote 31 The court also upheld the seventy-two-hour notice requirement with respect to the main issue remaining in contention—namely, whether it applied to a particular “Country A”—and, in doing so, emphasized the scantiness of briefing on this issue.Footnote 32
In dissent, Judge Henderson criticized the court as overstepping, writing that “[t]he opinion treats all but silently the judiciary's dispositively downsized role in the theater of war,” and “portends a hazardous expansion of the judiciary's role in matters of war and diplomacy.”Footnote 33 In contrast to the majority, Judge Henderson suggested that Doe is still effectively a battlefield captive, to whom, she argued, no process need be afforded until a decision has been made to extend his detention.Footnote 34 More broadly, she found no reason for reaching a different result than in Munaf, noting that case's factual similarity and the presence of analogous “comity and separation of powers considerations.”Footnote 35
Although the D.C. Circuit did not address the merits of the legality of the military campaign against ISIL, the government and the ACLU staked out starkly contrasting positions on this question in briefing at the district court. The ACLU had argued in its habeas petition that the only plausible legal bases for detaining a citizen without charge in military custody were the 2001 Authorization for Use of Military Force (2001 AUMF) in conjunction with the 2012 NDAA, or the 2002 Authorization for Use of Military Force (2002 AUMF)—none of which, it argued, applied to individuals who were not “part of or substantially supported al-Qaeda, the Taliban, or associated forces engaged in hostilities with the United States or coalition partners.”Footnote 36 ISIL, the ACLU pointed out, “did not exist at the time of the 9/11 attacks,” “is distinct from al-Qaeda,” and “has, in fact, opposed al-Qaeda.”Footnote 37 In response, the government argued that both the 2001 AUMF and 2002 AUMF justified the detention, noting that ISIL shared common roots with Al Qaeda, and also invoked the president's authority under Article II of the Constitution.Footnote 38 The Doe case is thus a potential vehicle for a court to consider the important question of whether the military campaign against ISIL is covered by the current AUMFs.
The current status of the case, however, leaves unclear how much further it will proceed. On June 6, 2018, the government informed the district court that, over Doe's objections, it planned to release him in Syria within seventy-two hours “either in a town or outside an Internally Displaced Person camp,” with the choice left to Doe.Footnote 39 The following day, the ACLU filed a motion for a temporary restraining order, arguing that “the government's proposal violates the requirement that military detainees be released to safety and not be exposed to hostile forces” as well as “shock[ing] the conscience that the government proposes to abandon a U.S. citizen with no passport, no assurances of safety, and no means of escaping a country that his own government has assessed as categorically unsafe for all U.S. citizens.”Footnote 40 Over the summer of 2018, the parties sought to reach an agreed-upon resolution.Footnote 41 As of mid-August, no such resolution had materialized.
