Armed Conflict Criminal Justice & the Rule of Law Terrorism & Extremism

Doe v. Mattis Ends With a Transfer and a Cancelled Passport: Lessons Learned

Robert Chesney
Monday, October 29, 2018, 11:14 AM

His name, it turns out, is Abdulrahman Ahmad Alsheikh.

Photo Credit: Department of Defense, Air Force Tech. Sgt. Brigitte N. Brantley

Published by The Lawfare Institute
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His name, it turns out, is Abdulrahman Ahmad Alsheikh.

For the past 13 months, most of us just called him John Doe. We knew he was a U.S.-Saudi dual citizen who was born in America and spent his college years in Louisiana while otherwise living his life in the Middle East. We knew that he voluntarily traveled to Syria during the heyday of the Islamic State’s territorial conquest. We knew that he ended up enrolled in the Islamic State’s ranks, that he later turned up at a Syrian Democratic Forces (SDF) checkpoint in Syria early in the fall of 2017 as the Islamic State’s military fortunes were in free-fall, and that he was turned over to U.S. military custody at that point. He has been in military detention ever since—and in litigation for most of that time as well.

But it’s over now (or at least soon will be). Charlie Savage, Rukmini Callimachi and Eric Schmitt of the New York Times report not only that Doe’s name is Alsheikh but also that a deal has been struck and that he has been transferred to Bahrain.

In the end, Doe v. Mattis raised and resolved a remarkable array of legal issues. But it left open the most important ones, despite the passage of 13 months. Here is an initial post-mortem on the key legal and policy legacies of the case.

1. Do the 2001 and 2002 Authorizations for Use of Military Force (AUMFs) apply to the Islamic State?

This was the most important question raised by Alsheikh’s detention. After an initial period of uncertainty, during which the Obama administration appeared (at least publicly) to rely solely on asserted Article II authorities to explain the domestic-law basis for its use of military force against the Islamic State in Iraq, the Obama and Trump administrations ever since have relied on the 2001 and 2002 AUMFs. This position is not without controversy, to say the least. Absent an occasion for the courts to weigh in, however, that controversy remains largely academic. This no doubt has played a role in dissuading the Trump administration from making good on President Trump’s oft-stated intention to bring new detainees—particularly Islamic State detainees—to Guantanamo. Then along came Alsheikh, unexpectedly dropped into America’s lap. Suddenly, there was a real prospect of a judicial ruling, one that might go in either direction—and that could have a significant effect on the legal foundations of the larger military effort. But as explained in the next point, that prospect never matured into a ruling despite the passage of more than a year. The government wanted to dodge this bullet, and it has succeeded in doing so.

2. Does the course of the case amount to a precedent blessing discretionary military detention?

I don’t think so. Certainly, 13 months passed here without a merits ruling. But a government lawyer would be unwise to assume that the same would be true if a citizen again is detained in like circumstances.

A close review of the procedural history of Alsheikh’s case complicates the picture considerably. First, it is only fair to disregard the most recent several months of his detention, for during this time the parties jointly and repeatedly asked the court to suspend proceedings while they negotiated over the terms of what became the Bahrain transfer. Second, one might also disregard—or at least discount to some extent—the many earlier months during which the U.S. government was attempting to transfer Alsheikh to an unnamed country (widely believed to be Saudi Arabia) and Alsheikh litigated—successfully—to prevent that transfer. Third, and most significant, it does not appear that Alsheikh’s lawyer at any point along the way complained to the court about the pace at which the litigation unfolded. (Indeed, it was the defense’s idea to bifurcate the merits such that the parties would first fully litigate the legal issues and only later take up the evidentiary dispute.)

All of this leads me to conclude that, if a similar case were to arise but with a detainee and counsel determined to press for a merits ruling, the government cannot count on getting the same result as here. It was clear even before this case arose that the government enjoys some initial period of discretion when a capture occurs in an overseas combat zone, and there is no denying that unfolding events in Alsheikh’s case prove that the government also enjoys a somewhat lengthy de facto period of further discretion simply by dint of the complicated logistics of determining whether and how a detainee in this situation might initiate litigation (or have it initiated on his or her behalf, as happened here) and how that litigation might then begin to unfold. But it does not follow that this de facto period could or should last as long as it did here. The government certainly could not—or at least should not—cite the passage of the full 13 months in Alsheikh’s case as somehow reflecting an affirmative judicial blessing.

3. Can the United States keep out a citizen who goes abroad to join a foreign terrorist organization?

One of the most striking features of the Times story about Alsheikh’s transfer to Bahrain is the paper’s reporting that: “The State Department has canceled Mr. Alsheikh’s American passport, officials said, but he did not relinquish his American citizenship as part of the release deal.”

This obviously presents the question of whether the government can refuse to provide a citizen with a passport, in circumstances where the denial would de facto expatriate the individual. The answer almost certainly is no, as Southern Methodist University’s Jeff Kahn explains for Lawfare here. That no doubt is the view of Alsheikh’s lawyers at the American Civil Liberties Union too, so I assume that what we have here is an awkward compromise amounting to a punt on the issue. I have long speculated (particularly in discussions of this case on the National Security Law Podcast) that the many recent months of negotiation involve an effort on the government's part to find a way to ensure that Alsheikh cannot reenter the United States. And we know from the Times article that Alsheikh refused (if he was even asked) to relinquish his citizenship.

Perhaps cancellation of his passport was a face-saving way for the administration to give up on this point. Alsheikh knows he might well succeed should he ever decide to try to press this issue by suing the State Department, while the government might rest comfortable knowing that Alsheikh is unlikely to pursue this path given that—should Alsheikh ever actually reenter the United States—there is still a real prospect of a material-support prosecution. (See my post here describing the plausibility of a prosecution based on the evidence cited by the government in its habeas filings.)

There is so much more that can be said about the course of events in this case, including the substantive rulings the litigation did produce on weighty matters such as the (lack of) authority to compel involuntary cross-border transfers of citizens in military custody and the ability of a court to compel the government to allow a citizen to have prompt access to an attorney seeking to represent the citizen in filing a habeas petition. And who knows; given the often-surprising track record in this case, there may yet be more twists and turns to cover in the months ahead.

Robert (Bobby) Chesney is the Dean of the University of Texas School of Law, where he also holds the James A. Baker III Chair in the Rule of Law and World Affairs at UT. He is known internationally for his scholarship relating both to cybersecurity and national security. He is a co-founder of Lawfare, the nation’s leading online source for analysis of national security legal issues, and he co-hosts the popular show The National Security Law Podcast.

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