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The Four Problems With Judge Henderson’s Dissent in Doe v. Mattis

Steve Vladeck
Thursday, May 10, 2018, 12:37 PM

There’s plenty to chew on in the 79 pages of opinions from the D.C. Circuit in Doe v. Mattis—in which a divided panel affirmed a district court injunction blocking the transfer of a U.S. citizen captured in Syria and held in Iraq as an “enemy combatant” to “Country A” (which is likely Iraq) or “Country B” (which is definitely Saudi Arabia).

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There’s plenty to chew on in the 79 pages of opinions from the D.C. Circuit in Doe v. Mattis—in which a divided panel affirmed a district court injunction blocking the transfer of a U.S. citizen captured in Syria and held in Iraq as an “enemy combatant” to “Country A” (which is likely Iraq) or “Country B” (which is definitely Saudi Arabia). Bobby already posted a typically thorough run-down of Judge Srinivasan’s majority opinion, so I thought I’d focus on Judge Henderson’s dissent—and why I think its reasoning is dangerous (and dangerously self-defeating).

At its core, Judge Henderson’s dissent focuses on what Bobby rightly describes as the “first” argument offered by the government—that, wholly apart from whether authority to transfer Doe can be derived from the 2001 authorization for the use of military force, which, in turn, depends upon whether Doe is properly detained under that statute, he can be transferred based solely on the government’s allegations simply on the basis of the Supreme Court’s 2008 decision in Munaf v. Geren.

Judge Srinivasan’s majority opinion reads Munaf as standing for the proposition that, “when a foreign country wishes to prosecute an American citizen who is within its borders for a crime he committed while there, the Executive can relinquish him to the country’s custody.” Clearly, that is not this case (even though there’s good reason to suspect that “Country A” is Iraq, the government has apparently offered no evidence that Iraq is seeking to prosecute Doe—or that there’s even an agreement to transfer Doe there). Judge Henderson agrees that “the Supreme Court’s holding [in Munaf] was narrow,” but argues that “the Court’s reasoning swept more broadly.”

To that end, Judge Henderson reads Munaf as providing that, “if it is ever ‘appropriate,’ as a matter of ‘equitable principles,’ to enjoin a captive’s transfer from executive branch custody simply to allow him to challenge that soon-to-be-erstwhile custody, such relief ought to be reserved for the most ‘extreme case’ of executive branch malfeasance.” In other words, courts should only use habeas to block the transfer of citizens in cases in which misconduct by the executive branch justifies such a sanction, because, as a general proposition, release from U.S. custody (including by transfer to another country) is the “core” purpose of habeas corpus. And because Doe has no evidence of government misconduct here, he can’t meet the “likelihood of success” prong to demonstrate his entitlement to a preliminary injunction.

To me, there are at least four distinct—but equally serious—flaws with this reasoning:

First, it’s dead wrong about the “core” of habeas corpus. As far back as the Habeas Corpus Act of 1679, it’s been clear that at least one of the core purposes of habeas corpus is to block the government’s unlawful transfer of a prisoner to foreign custody—wholly apart from whether the prisoner is lawfully held by the government in the first place. That is to say, the legality of a prisoner’s detention and the legality of his transfer can be related, but they can also be distinct. Thus, it doesn’t follow that the only basis “to enjoin a captive’s transfer from executive branch custody” is “to allow him to challenge that soon-to-be-erstwhile custody.” A citizen who is lawfully detained within the United States (say, pursuant to a criminal conviction) is still entitled to bring a habeas petition to challenge a potentially unlawful extradition.

Second, in concluding to the contrary, Judge Henderson wildly overreads Munaf. As Bobby and I have stressed all along, this case falls into a gap between two Supreme Court decisions: Valentine, which imposes a general requirement of affirmative authority to transfer U.S. citizens from the United States to another country; and Munaf. Unlike in Valentine, Doe was picked up outside the United States (and in the context of armed conflict). But unlike in Munaf, the government is seeking to transfer Doe to a country other than the one in which he was captured, and without a clear assertion of that country’s sovereign interest in prosecuting crimes committed on its soil (or by its citizens). Henderson claims that “focusing on a receiving country’s interest in prosecuting territorial offenses misses the ocean for the boat: in the habeas context, comity is why the prosecutorial interest matters.” That may be. But she nowhere addresses the other distinction between Doe’s case and Munaf: that, at least with respect to transferring Doe to Saudi Arabi—er, “Country B”—neither his capture nor his detention took place on that country’s soil. In Munaf, though, the fact that the petitioners were arrested and detained in Iraq was indisputably central to Chief Justice Roberts’s majority opinion, and for two good reasons: The petitioners could hardly object to ending up in the custody of the sovereign to the territory of which they had voluntarily traveled, and the crimes at issue had taken place on that sovereign’s soil. Thus, it just doesn’t follow that Munaf compels the result here.

Third, even on a clean slate, Judge Henderson’s reasoning for opposing the injunction is self-defeating. After all, on her view, the government should have been entitled to transfer Doe to “Country B” (Can’t we just say Saudi Arabia?) as soon as it reached an agreement to do so, unless Doe could show some malfeasance. But how would Doe have had an opportunity to make even that showing if he wasn’t entitled to notice and an opportunity to be heard prior to his transfer? That is to say, Judge Henderson appears to believe that habeas should only be available in factual circumstances that would almost certainly not become evident in the absence of the very judicial review that would presumably be necessary in order to document those circumstances. Thus, although Judge Henderson purports to limit her application of Munaf to the unique circumstances of this case, noting “Doe’s voluntary travel abroad to a war zone during active hostilities; his capture on a foreign battlefield by foreign military forces; his admitted affiliation with a terrorist organization the United States is combatting militarily; the Executive Branch’s resulting good-faith determination that Doe is an enemy combatant; Doe’s continued presence in the same active theater of combat as his capture; and the receiving country’s facially compelling interest in his transfer.” But she provides no explanation for how those limits would be enforceable under her view of the way these cases ought to proceed.

That leads me to the fourth and final point: Judge Henderson devotes a number of rhetorical flourishes to the in terrorem claim that the majority opinion unduly handicaps the executive ranch in the conduct of foreign policy—and that “[a]ffirmance portends a hazardous expansion of the judiciary’s role in matters of war and diplomacy.” But there’s an easy and obvious way for the government to transfer Doe here—win his habeas case. As the majority concedes, if Doe is lawfully detained under the 2001 AUMF, then that statute (and the laws of war that it incorporates) would provide affirmative authority for his transfer to a coalition partner like “Country B.” Why, then, hasn’t the district court already ruled on the merits of Doe’s habeas petition? There’s a fair amount of finger-pointing to go around here (and Judge Henderson does some of it herself). But keep in mind that the government spent the better part of three months disputing whether the court could even hear the case in the first place, on the ground that there was no one in a position properly to represent him. I dare say that, had the government not wasted so much time on that particular frolic, it would already have such a merits decision in place.

Of course, whoever loses on the merits may well choose to appeal to the D.C. Circuit (and, potentially, the Supreme Court). So in one sense, Judge Henderson is right that the majority’s reasoning will limit the government’s ability to involuntarily transfer to another country a U.S. citizen who it has been detaining as an “enemy combatant” for a substantial period of time, at least in a case that’s not on all fours with Munaf (i.e., a citizen who is picked up and detained in a country different from the one to which the government seeks to transfer him). Just to be clear, to date, the class of cases presenting this scenario is, well, a class of one—Doe. And as the majority correctly notes, if one fortuitous case really is a problem worth a solution, the government is free to ask Congress for express statutory authority to transfer citizens in such cases, or to negotiate extradition treaties with the countries at issue. If Judge Henderson is correct that no such statute, no such treaty, and no final judicial determination of Doe’s status as an “enemy combatant” was necessary to transfer him, then what’s to stop this (or any future) administration from abusing this power to violate the rights of American citizens? Judge Henderson says there’s no need to worry about such a “farfetched hypothetical.” My concern is that, in a world in which her dissent is the law, there’d be nothing to stop such a hypothetical, however farfetched, from coming to pass.

Steve Vladeck is a professor of law at the University of Texas School of Law. A 2004 graduate of Yale Law School, Steve clerked for Judge Marsha Berzon on the Ninth Circuit and Judge Rosemary Barkett on the Eleventh Circuit. In addition to serving as a senior editor of the Journal of National Security Law & Policy, Steve is also the co-editor of Aspen Publishers’ leading National Security Law and Counterterrorism Law casebooks.

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