Assessing the ACLU Habeas Petition on Behalf of the Unnamed U.S. Citizen Held as an Enemy Combatant in Iraq

The American Civil Liberties Union has filed a John Doe habeas petition on behalf of the still-not-identified American citizen the U.S. military is holding as an enemy combatant in Iraq (for background, see here). The case is Doe v. Mattis, No. 17-cv-02069, and it was filed in federal district court in D.C. Here is my preliminary assessment.

1. There should be no doubt that the court has jurisdiction in such a case, given John Doe's U.S. citizenship.

Under Munaf v. Geren, this seems clearly settled. In that 2008 case, a unanimous Supreme Court concluded that habeas jurisdiction was applicable where the U.S. military held an American citizen in detention in Iraq, based on his alleged ties to AQI (the Islamic State's prior identity) and pending transfer to Iraqi custody for prosecution there. John Doe's fact pattern is very unlikely to turn out to be different in any meaningful sense.

2. Normally we should be cautious about an NGO appointing itself as 'next friend' in order to sue in another's name, but here...

Normally the decision to sue should be made by the party in issue or, failing that, a family member or other person with an organic claim to next-friend status. On the other hand, it cannot be the case that the government gets to defeat habeas jurisdiction simply by refusing to reveal the name of a citizen it holds captive and thereby precluding any of the preferred next-friend possibilities from knowing that the occasion for them to step in has arisen. The latter point at first blush suggests, of course, that ACLU should be allowed to stand in, for now at least, subject to revocation of the next-friend status at a later stage when John Doe or a family member becomes involved and opts for different representation. But: Let's not lose sight of the possibility, slim as it may be, that John Doe's family does know of his detention and has, for the moment at least, chosen not to litigate (perhaps because, for example, negotiations for a plea deal are underway). If one thinks that is at least possible, then it could be that the proper course for the newly filed habeas case is for the district judge to ask the government to show cause why ACLU should not be allowed to act as John Doe's next friend. If there's a negotiation of some kind underway or another good reason to think that the family is in the loop and not inclined to litigate for now, it could make a sealed showing to that effect.

3. A quick review of the merits arguments in the petition:

Understandably given the procedural posture, the petition does not emphasize questions about the factual predicate for claiming that John Doe is a fighter for the Islamic State. Instead, it focuses on a variety of legal arguments designed to show that the government cannot hold him in military detention even if that claim is true.

a. The Non-Detention Act and the AUMF

First and foremost, the ACLU argues that no current statute (not the 2001 Authorization for Use of Military Force, not the 2002 Iraq AUMF and not the National Defense Authorization Act passed in fiscal 2012) applies to the Islamic State, and hence detention of John Doe necessarily violates the Non-Detention Act of 1971 (18 USC 4001(a) (forbidding detention of a U.S. citizen except pursuant to a statute). This, of course, puts front and center the uncertain statutory foundation for the larger war against the Islamic State. The issue has loomed large since the moment the Obama administration invoked the 2001 and 2002 AUMFs as the basis for military operations against the Islamic State years ago, but because there have been no detainees in U.S. custody until now—or, rather, none with any practical shot at securing habeas review—the debate has not come before a judge. Pretty much everyone I know who has been watching this situation unfold has observed that keeping John Doe in military custody will set in motion an eventual ruling on that theory, with the potential to unsettle the legal foundation of the entire war effort. We're still quite a ways from such a ruling, but now the train has pulled into the station.

Of course, a judge might endorse rather than reject the claim that the Islamic State is within the scope of one or more of these statutes. The ACLU's petition dismisses the idea of the 2001 AUMF applying, saying John Doe surely was not directly party to the 9/11 attacks and is alleged to be a member of the Islamic State, not al-Qaeda (and, indeed, that the Islamic State has become adversarial with al-Qaeda). The petition fails to mention the critical fact that the Islamic State is, in fact, the same entity that once was known as al-Qaeda in Iraq, which clearly had been an associated force of al-Qaeda for many years. Because of that fact, the important question will be whether AQI's eventual split from al-Qaeda's network had the effect of instantly (or eventually) exempting it from coverage under the 2001 AUMF. There is some room here for reasonable people to disagree, but just as the case is not nearly so easy for John Doe as the petition suggests, nor is it as easy as the government would like it to be.

b. A right to contest the grounds for detention in court...Yes, but when does it kick in?

Separately, and to my mind much more persuasively, the petition invokes a variety of legal authorities for the proposition that John Doe must have an opportunity in court to contest the grounds for his detention. This seems clearly correct as a matter of John Doe's Fifth Amendment rights under the Due Process Clause, in accordance with 2004's Hamdi v. Rumsfeld. The petition goes on to claim that international humanitarian law also provides habeas corpus rights to "all detainees." That is wildly incorrect but also not necessary for John Doe to claim given his Due Process Clause claim.

The problem with this aspect of John Doe's claim is this: When, precisely, does this right kick in? In the context of an overseas armed conflict, the answer probably is not immediately upon capture. But nor can it be delayed indefinitely. In his Boumediene ruling in 2008, Justice Anthony M. Kennedy wrote:

Our holding with regard to exhaustion should not be read to imply that a habeas court should intervene the moment an enemy combatant steps foot in a territory where the writ runs. The Executive is entitled to a reasonable period of time to determine a detainee’s status before a court entertains that detainee’s habeas corpus petition. The CSRT process is the mechanism Congress and the President set up to deal with these issues. Except in cases of undue delay, federal courts should refrain from entertaining an enemy combatant’s habeas corpus petition at least until after the Department, acting via the CSRT, has had a chance to review his status.

I think this question of timing is perhaps the most interesting question the John Doe habeas petition presents and is among the most indeterminate. Is a week enough? A month? What is the metric a court should use to decide, assuming that a court thinks any delay at all is permitted?

c. Is John Doe's detention forbidden because the government is interrogating him?

The petition points out that the court in Hamdi observed, quite correctly, that wanting to interrogate someone is not a valid basis for military detention under color of the law of armed conflict. On the other hand, though, Hamdi also concluded that the status of being an arms-bearing member of the Afghan Taliban while an armed conflict with that group continued is a proper basis for detention of that kind. A detaining power almost always will have some interest in interrogating those whom it properly holds, and that interest does not mean the detention therefore ceases to be lawful. That's the situation that appears to be in play here with John Doe: He's being held on the grounds that he's an Islamic State fighter, and the government also wants to interrogate him. So long as there is a legitimate basis for detention, the interest in interrogation is besides the point. If the ACLU can prove that he is not properly detained on membership grounds and that he is simply someone the government thought could provide useful intelligence if interrogated, that would be an entirely different matter.

d. A (partially) missing argument: Transfer to Iraqi custody while at risk of torture.

I thought till the very end that the ACLU had simply missed the possibility that the U.S. government might transfer John Doe to Iraqi custody and thus that the petition would fail to argue that such a transfer would be illegal. Although there is no specific count making this argument (under due process or the Foreign Affairs Reform and Restructuring Act of 1998), the issue does show up in the prayer for relief at the end.

4. Prediction: Within a week or so, John Doe will be en route to the U.S. to face civilian prosecution.