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Earlier today, the U.S. Court of Appeals for the D.C. Circuit heard oral argument in Doe v. Mattis, the case of a dual U.S.-Saudi citizen (John Doe) detained in Iraq by the U.S. military. Judges Sri Srinivasan and Robert Wilkins considered whether the U.S. District Court for the District of Columbia had erred in granting a preliminary injunction requiring the government to give 72 hours of notice before transferring Doe from U.S. custody. Judge Karen LeCraft Henderson was also assigned to the panel but didn’t show up for the oral argument. Srinivasan stated that Henderson will decide the case based on the briefing and the recording of oral argument.
Bobby Chesney has commented on Doe’s case extensively on Lawfare. Scott Harman wrote a preview of the oral argument, which summarizes where the case stands to date. I will assume familiarity with the case in what follows. A recording of oral argument is available here.
Doe continues to pursue habeas litigation on the merits of his continued detention in the district court. Today’s argument concerns only an interlocutory appeal on a specific matter: the government’s request that the circuit court vacate the district court’s order granting the injunction on transfer notice. The matter, both parties agree, is subject to de novo review.
Srinivasan starts things off with an announcement that today’s hearing will take place in two sessions: first, a public session that will be conducted without reference to sealed information (he explicitly notes the identities of the two countries to which the government has indicated Doe might be transferred); and second, a closed session in which the sealed information will be discussed.
James Burnham takes the floor for the government and thanks Srinivasan for bifurcating the session. He quickly runs through the story of how Doe ended up in U.S. custody and emphasizes that the “sweeping” preliminary injunction is hindering the government’s attempts to transfer Doe by casting a cloud of uncertainty over the ongoing diplomatic negotiations.
Wilkins asks why the government considers the injunction to be “sweeping”: after all, it doesn’t outright prohibit Doe’s transfer, just requires a period of notice before that transfer takes place. The injunction is sweeping in that it applies to all potential countries to which the United States might transfer Doe, Burnham explains—not only the two countries with which the U.S. is actually negotiating. When Srinivasan asks whether the government made this specific critique of the injunction before the district court, Burnham acknowledges that it did not, but says that the legal rule at issue is the same: whether Munaf v. Geren permits the government to transfer Doe to a state with a legitimate sovereign interest in the detainee. (The government is arguing that Munaf does.) In earlier proceedings, the government had asked the district court to exclude from its injunction any country with a legitimate interest; here, the government is confining that request to the two countries at issue.
Srinivasan and Burnham get into a tangle over how to interpret Omar v. McHugh (Omar II), which Srinivasan characterizes as precluding the government from transferring a detainee with no judicial review: Srinivasan reads the case as applying to individuals held by the U.S. anywhere in the world, while Burnham would confine it to individuals held in U.S. territory. For the purposes of argument, assume I’m right, says Srinivasan; would Omar II then preclude the government from transferring Doe without judicial review?
Burnham argues that even under that reading of Omar, the executive branch would have Article II authority to transfer Doe as an individual captured on the battlefield, and could transfer him to a state with a legitimate interest under Munaf. The court would have authority to assess whether what Srinivasan describes as “the existing basket of interests” on the part of the receiving state were sufficient under Munaf, though not the factual existence of the interest itself—just as, under Kiyemba v. Obama (Kiyemba II), the courts must defer to the executive’s assessment of whether a detainee risks being tortured if transferred. Srinivasan pushes Burnham several times to reaffirm that the government accepts some level of judicial review under Munaf.
Wilkins then poses a hypothetical to which he’ll return over the course of the argument: Imagine that the government detains a journalist in a war zone and determines him or her to be an enemy combatant. The government seeks to transfer the journalist to Siberia or somewhere else “unpleasant.” To what extent would the courts be able to review the journalist’s case if he or she files a habeas petition? Srinivasan jumps in and splits the hypothetical into two separate questions: first, whether the government has the legal authority to transfer the hypothetical journalist; and second, whether that authority is reviewable.
Srinivasan seems to want to focus on the latter question, but the argument shifts toward the former instead. Burnham says that while the statutory authority behind any potential transfer would be case-specific (for example, whether the U.S. had an applicable treaty with Russia, if the journalist were to be transferred to Siberia), it would be entirely possible under Munaf that Russia would lack a legitimate interest in the journalist and that the transfer would therefore not be authorized.
Burnham makes the case that the Doe fact-pattern closely tracks the Munaf fact-pattern: Doe voluntarily traveled to Syria, was turned over to U.S. custody, and is held by the U.S. military on the good-faith determination that he is an enemy combatant in the midst of ongoing hostilities. In the journalist’s case, on the other hand, the fact-pattern would be different. He makes a plea for the court to confine its thinking to the specific facts at issue in Doe’s case.
But Iraq had a traditional sovereign interest in criminal prosecution of the petitioners in Munaf, Srinivasan says. What’s more, this sovereign interest sufficed for the petitioners’ detention—so the Supreme Court didn’t get to the point of addressing the combatant status of the petitioners. That’s not the case here, he argues. Burnham responds by arguing that Kiyemba II applied Munaf more broadly in holding that states may have other sovereign interests in receiving detainees close to the criminal prosecutorial interest.
Wilkins then goes to the question of whether the court can review the merits of Doe’s designation as a combatant. If the court revokes the preliminary injunction, he says, what happens if Doe is then transferred and seeks to return to the United States? There will be a finding on the books that he’s a combatant, Wilkins notes. Would transferring Doe prevent him from ever being able to litigate the merits of his detention? Burnham says that in that case, the government would file motion to dismiss Doe’s habeas petition as moot—so Doe would have the opportunity to litigate the determination at that stage.
Wilkins pushes further, asking whether or not Doe’s status as a combatant has a legal impact on the executive’s ability to transfer him. The court can rely on the government’s good-faith determination of Doe’s combatant status, Burnham says. Doe has no right to judicial review of that status pre-transfer.
But Munaf itself involved a judicial determination of the petitioner’s status, Srinivasan argues; it’s just that the determination was made as to Iraq’s legitimate interest in prosecution, rather than combatant status. So perhaps Doe does have a right to have his combatant status reviewed pre-transfer. Burnham disagrees with this characterization. He argues that Srinivasan is presenting Munaf as determining that the U.S. could engage in detention so long as Iraq’s interest in criminal prosecution persisted; in fact, the Munaf Court determined that the U.S. could hand over the petitioners to Iraq on the basis of a sovereign interest that extended beyond prosecution.
Srinivasan now moves on to the question of the relationship between the authority to transfer and the authority to detain: does the former imply the latter, or are the two distinct? It seems that in order to transfer an individual, the government first must have the ability to take that person into custody. Burnham again argues for a different characterization and chooses to frame transfer as the relinquishing of detention. So, Srinivasan asks, why then isn’t the power to transfer plenary? Doesn’t the government’s argument imply that there’s no right to habeas review before transfer at all?
Once more, Burnham emphasizes that the court could review whether the legitimate interest of the receiving state is sufficient under Munaf. And once more, he points out that Doe’s case closely tracks the Munaf fact-pattern, especially regarding the government’s good-faith determination that Doe is likely an enemy combatant. When Srinivasan asks whether the court could review the merits of the combatant status of the hypothetical journalist pre-transfer, Burnham continues to doggedly emphasize that Wilkins’s hypothetical is very different from the facts at hand in Doe’s case. In general, Burnham says, a detainee’s status would not be reviewable before a transfer—but perhaps a detainee could successfully seek that review under “absurd” circumstances. While bad cases might make bad law, he seems to be saying, Doe’s case isn’t a bad one.
Srinivasan moves on to questioning Burnham about the government’s view of Kiyemba II, asking whether Doe’s case can be distinguished because Kiyemba II dealt with detainees who could only be transferred, not simply released. So perhaps the government can’t rely on Kiyemba II as an authority. Burnham argues for a broader reading of the case, as he also does in reading Munaf as defining a sovereign interest as encompassing a broad range of factors beyond only criminal prosecution. With that, he finishes.
ACLU lawyer Jonathan Hafetz begins argument on Doe’s behalf by attacking the government for changing its argument against the injunction to focus on the two specific countries at issue. This argument quickly falters when Srinivasan notes that parties often narrow the scope of issues over the course of litigation. In fact, the judge says, the narrowing is actually good for the ACLU because the government has effectively conceded the validity of the order except with respect to those two countries.
Hafetz is going to have a tough time in this argument. Srinivasan's questions for the government seemed mostly aimed at clarifying just how little judicial review was available, albeit ensuring that there was some level of review. For Hafetz to maintain the injunction, he’s going to need to persuade the panel that a lot of judicial review is available. The votes are not obviously there for that proposition (even were all three votes physically present to begin with).
But Hafetz gamely argues that, in requiring notice but not prohibiting transfer outright, the injunction is actually quite narrow—not “sweeping,” as the government argues. He hints that the ACLU has concerns over possible mistreatment of Doe were he to be transferred, though when Wilkins asks for details, he says he’ll defer his full answer until the closed session. His point is that Munaf and Kiyemba II both preserve the ability for the court to bar a transfer in “extreme” circumstances.
Under Omar II, Hafetz says, the government must have positive legal authorization—such as an extradition treaty—to transfer a detainee, which is required by the Due Process Clause and pursuant to the principle of separation of powers. And the government has not identified a positive authority in this case.
So would Article II be a positive authority, Srinivasan asks? Hafetz declares definitively that it would not be. All three branches of government must be involved when an American citizen’s liberty is at stake, he says.
Srinivasan tries again: If we assume that the court can’t dispute the government’s determination of Doe’s status, he says, can’t his status as an enemy combatant in itself serve as positive authorization for his transfer? After all, under Hamdi v. Rumsfeld, enemy combatant status is sufficient to detain an individual.
Hafetz acknowledges that there could be a positive legal basis for transfer under the laws of war or the AUMF. The problem, in his view, is that the government’s good-faith determination is not sufficient. Doe has a right to judicial review of the merits of his status as a combatant under Hamdi. When Srinivasan notes that the Supreme Court authorized transfer without status review of detainees who contested their status in both Munaf and Omar II, Hafetz argues that Munaf is distinct because the petitioner had no available remedy. In Doe’s case, on the other hand, the government could simply free him in a safe place in Iraq or bring him to the United States to face trial in an Article III court.
Srinivasan then asks whether the government would have a duty to continue the detention of a hypothetical U.S. citizen picked up on the battlefield, to allow that citizen to exercise habeas rights. Hafetz says that while there would be no habeas claim if the government were to move that individual to a U.S. prison, a court could review an effort to transfer the detainee to a different country. Any transfer would be subject to judicial review, he argues: the government cannot “forcibly render a U.S. citizen without some source of authority.”
Srinivasan seeks to clarify just what positive authority the ACLU is looking for: would a broader authority to wage war suffice? Hafetz acknowledges that that’s possible, but he says that the government hasn’t given any hint as to what positive law it’s relying on at all.
Wilkins notes that in its reply brief, the ACLU assumed for the sake of challenging the government’s legal authority that Doe is, in fact, an enemy combatant. This seems like “a dog chasing its tail,” he says: if Doe really is a combatant, that might be the positive law that Hafetz insists the government needs. (Wilkins seems to be referencing Srinivasan’s earlier point that, under Hamdi, the 2001 AUMF might provide legal authorization for transferring an enemy combatant.) Hafetz argues that the ACLU is assuming Doe’s combatant status only to challenge his detention—not his transfer, which is a separate issue. He cites Munaf to make the case that detention and transfer can stem from different legal authorities.
In the interests of preventing the metaphorical dog from chasing its tail any further, Srinivasan asks Hafetz to assume that Doe’s combatant status would provide positive legal authorization for his transfer. If the government is relying on the same authorization to transfer as it is to detain, Hafetz says, the court would need to determine whether the government has authorization to detain in the first place—that is, whether or not Doe is really a combatant.
Srinivasan refers to the level of due process required under Hamdi for American detainees to contest their combatant status. Is Hafetz arguing that this process is required for every battlefield detention in which the government makes a determination that a U.S. citizen is an enemy combatant? Hafetz says yes—only for Srinivasan to point out that the Hamdi plurality states that process is due only in cases of continued detention. So why wouldn’t that due process right also attach only in cases in which a detainee is held for a prolonged period before transfer, Srinivasan asks?
There’s a long silence. Perhaps there’s no basis for a court to review a speedy transfer, Hafetz concedes. But once a status determination is made, the right of habeas attaches, and the individual’s detention and transfer become subject to judicial review.
Wilkins poses another hypothetical: Suppose the United States decides to transfer Doe to a third state that has no interest in prosecuting him or restricting his movements—for example, Namibia. (Between Namibia and Siberia, Wilkins’s geographic examples this hearing have been far-flung, if all ending in “ia.”) Doe could then, if he chose, travel from Namibia back to the U.S. Would habeas require that this transfer be reviewed by the courts as well? Yes, says Hafetz: “a forcible transfer is not the equivalent of release.” And unlike in Munaf, the government can safely release Doe in Iraq by simply opening the jailhouse door.
Hafetz concludes his argument. Srinivasan gives Burnham three minutes for rebuttal, but Burnham asks that the hearing be continued in closed session. The court takes a recess—and with that, the uncleared masses are booted out of the courtroom.