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There was a strange sense of deja vu this morning at the E. Barrett Prettyman Federal Courthouse. Three weeks after the U.S. Court of Appeals for the D.C. Circuit heard oral arguments over a preliminary injunction in Doe v. Mattis, the same panel returned to hear a second round of arguments over another preliminary injunction in the same case. And no, we still haven’t reached the merits; Doe continues to litigate his underlying habeas claim in district court. In early April, the hearing concerned whether the U.S. District Court for the District of Columbia had erred in requiring the government to provide 72-hours of notice before transferring a dual U.S.-Saudi citizen held in U.S. custody in Iraq (John Doe) to the custody of an unnamed third country (what country could that possibly be?). Before the appeals court could rule on the matter, the government announced its intention to transfer Doe—and the district court issued a new injunction barring that transfer. It’s that injunction that’s before the D.C. Circuit today.
The government is back before the same panel of the appeals court in an effort to convince Judges Sri Srinivasan, Robert Wilkins, and Karen LeCraft Henderson that the second injunction was granted in error as well. Once again, it’s a panel minus one: Judge Henderson is absent from the courtroom, and Srinivasan announces that she will decide the case on the basis of the briefing and recording of oral argument.
Bobby Chesney has written extensively on Doe’s case on Lawfare, and I summarized the last round of oral argument here. For the rest of this oral argument summary, I will assume familiarity with the case. A recording of oral argument is available here.
At this point in the case, it’s pretty well established that the government is seeking to transfer Doe to Saudi Arabia, thanks to both reporting and some sloppy redactions. Nevertheless, Srinivasan announces—as he did last time around—that the hearing will be split into a public session and a private session in order to shield the identity of the possible countries to which Doe might be transferred. Arguing for the government, James Burnham thanks Srinivasan for bifurcating arguments, as well as granting a speedy hearing. (Burnham also argued for the government during the previous hearing.)
Burnham begins by criticizing what he sees as the broad scope of the ACLU’s argument. He says that Doe’s argument allows the government only three options: (1) keep Doe in U.S. custody and allow him to litigate his habeas claim; (2) transfer Doe, but only after full habeas review; (3) free Doe immediately. This doesn’t follow from Valentine v. United States ex rel. Neidecker, he argues, and it’s in contradiction to both Munaf v. Geren and Hamdi v. Rumsfeld.
Wilkins asks Burnham about a Defense Department directive that, he understands, specifies the rights of U.S. citizens detained by the government and provides for review of their cases; the directive relates to transfers as well. His point is that Doe’s situation isn’t unprecedented. “I’m not familiar with the directive,” Burnham says, but the Pentagon has given no indication that it hasn’t complied with its internal directives on the matter. Doe has been determined to be an enemy combatant, though there has been no formal adjudicatory process. He offers to file something with the court along those lines.
Srinivasan wants to know why it matters whether or not Doe is an enemy combatant. He points out that neither Munaf nor Wilson v. Girard, another case regarding the transfer of a U.S citizen, had anything to do with combatant status.
Burnham emphasizes that the government has made a good-faith determination that Doe is an enemy combatant, but acknowledges that Srinivasan is correct. Focusing on Doe’s enemy combatant status “takes off the table the more extreme hypotheticals,” he says. (He may be referencing a hypothetical posed by Wilkins during the last round of arguments as to the government’s power to transfer a U.S. journalist detained in a war zone to Siberia.) He will return to this point repeatedly throughout arguments: the government isn’t making a broad claim of authority to transfer a citizen in any situation, but a narrow argument confined to Doe’s case alone.
Srinivasan asks whether there has been an instance in which the U.S. has forcibly transferred a citizen from one foreign country to another—rather than in Munaf, for example, in which the petitioner was transferred to Iraqi authorities after being held in U.S. custody in Iraq. Burnham is not aware of any published legal opinion or other instance in which that’s taken place. Srinivasan clarifies that that’s true outside wartime contexts as well, and Burnham affirms his response.
Srinivasan goes back to his question about the relevance of Doe’s enemy combatant status. The government is arguing that the state to which it seeks to transfer Doe (pssssst: it’s Saudi Arabia) has prescriptive jurisdiction over him under international law—but again, this jurisdiction has nothing to do with wartime. He and Burnham go back and forth on this several times, with Burnham reaffirming the role of prescriptive jurisdiction and Srinivasan clarifying that Doe’s combatant status has nothing to do with this. As he did during the last hearing, Srinivasan seems to be trying to push the government to clarify that it’s making a narrow argument rather than claiming a vast, unreviewable power to transfer. And as he did during the last hearing, Burnham is only too happy to oblige.
Wilkins breaks in and asks Burnham to clarify how the government is defining what constitutes an enemy combatant. When Burnham says that it’s the AUMF, Wilkins then asks whether the government is arguing that the Islamic State—for whom Doe allegedly fought in Syria—is an associated force of al-Qaeda under that authorization. Yes, says Burnham, but there’s no need to get to that here; we’re not addressing the question of the merits of Doe’s detention in this hearing.
Wilkins wants to know if that means that it’s irrelevant whether the government might be wrong in its good-faith determination that Doe is an enemy combatant. Burnham essentially says yes: Munaf doesn’t establish any judicial process by which a U.S. citizen determined to be a combatant must have his or her status reviewed pre-transfer.
Again, Srinivasan returns to the question of whether Doe’s combatant status has any role to play under Munaf. The petitioners in Munaf were deemed to be combatants, but the transfer did not take place under the law of armed conflict. He notes that a good-faith determination of combatant status is not enough to justify detention under the law of armed conflict—so why would the law of armed conflict permit transfer under that same good-faith determination? Returning to domestic law, why should extended detention of a U.S. citizen require the level of review established by Hamdi, while transfer of a U.S. citizen requires only a good-faith determination?
It’s not just good faith, Burnham says. Munaf also requires the country to which Doe is transferred (read: Saudi Arabia) have jurisdiction over him. Ah, says Srinivasan, so enemy combatant status doesn’t matter?
Burnham emphasizes Munaf again, but notes that the executive’s Article II authority is at its highest level in this case because of Doe’s alleged involvement in hostilities.
At this point, Srinivasan changes the topic to Valentine. Imagine if Valentine concerned not U.S. citizens seeking to avoid extradition to France from the United States, but instead Americans who traveled to Mexico. Would the United States have been able to transfer them from Mexico to France? Srinivasan seems to be trying to figure out where the Valentine rule ends.
That would be a hard case, Burnham says, but it would be very different from Valentine, which involved extradition; there would be no extradition question if the petitioners had been in Mexico.
Srinivasan returns to the question of whether the government has the authority to transfer on the basis of a good-faith determination alone but not to detain. He points to the 2012 NDAA, which addresses transfers alongside detentions under the law of armed conflict. If Congress contemplated transfers and detentions in the same breath, why are they different?
Burnham says he doesn’t have the statute on hand, but he can say that the NDAA wasn’t meant to confine executive power in this space—what’s more, the relevant provision wasn’t limited to citizens, as the current legal argument is. So the statute shouldn’t be read to imply that both transfer and detention require the same level of legal authority.
With that, Burnham finishes.
Jonathan Hafetz, who argued for the ACLU in the previous round, is back this time too. While Burnham sought to describe the government’s position as narrow, Hafetz lambastes it as overly broad, “a distortion of Munaf and an assault on Hamdi.” In his view, detention and transfer require the same level of authorization—meaning that a good-faith determination of combatant status is far from sufficient to authorize Doe’s transfer.
Srinivasan asks whether the ACLU disagrees that the U.S. could have transferred Doe out of Iraq after Doe claimed U.S. citizenship. The executive has the prerogative to move Doe to a different U.S. facility while assessing his status, Hafetz allows. It just doesn’t have the sole prerogative to transfer him to the custody of another country, even the one in which he’s being held—that is, Iraq. Under Valentine, the government must have positive legal authorization for any transfer of U.S. citizens to a third-party government, even if the citizen is subject to detention under the laws of war.
But Munaf explicitly carves out an exception from Valentine, Srinivasan says. Isn’t the holding of Munaf that under circumstances that match the Munaf fact-pattern, Valentine’s requirement of positive law doesn’t apply?
Hafetz notes that Omar v. McHugh (Omar II) required positive legal authorization to transfer a detainee. He argues that the relevant passage in Munaf holds that in the specific circumstances of the case at hand, the government did not need the explicit authorization of a statute or treaty to transfer the petitioners only because the transfer already had positive authorization from the 2002 AUMF, in connection with U.N. Security Council resolutions. Hafetz is reading Munaf narrowly while the government reads it widely.
Srinivasan pushes back with some evidence in favor of the wider reading. He points to the Munaf court’s description of Wilson as allowing transfer in a situation in which (1) a “background principle,” rather than explicit positive authorization, spoke in favor of transfer; and (2) there was an absence of “constitutional or statutory impediment.” That is, perhaps Munaf doesn’t require positive authorization but does the opposite, allowing transfer unless positive law prohibits it. Can Hafetz draw a convincing distinction between Doe’s case and Munaf?
Hafetz says that Srinivasan’s description is “not the best reading” of Munaf. Wilson, he argues, found authority to transfer the petitioner based on both a treaty and an administrative agreement between Japan and the United States. There must be a legal framework involved.
So, Wilkins asks, if we go with Srinivasan’s reading of Munaf instead, does the ACLU lose?
Not at all, Hafetz says. Arguing in the alternative, he makes the case that Doe’s situation doesn’t sufficiently match the Munaf fact-pattern, pointing first to the fact that the state to which the government wants to transfer Doe doesn’t have territorial jurisdiction over him—as Iraq did in Munaf. Moving beyond this requirement for territorial jurisdiction would be an “unprincipled expansion” of Munaf.
It may be wrong, Srinivasan says, but why is it unprincipled? The state at issue (hint: it starts with “S” and ends with “Arabia”) has other sovereign interests in receiving Doe.
When Hafetz objects that this would “eviscerate” Hamdi, Srinivasan takes the opportunity to clarify that the ACLU is arguing that the authorization to detain must be the same as the authorization to transfer. That’s right, says Hafetz. Allowing the government to transfer Doe would constitute an end run around Hamdi. It would mean that the government could simply bring detainees to a U.S. military base in any third-party country and hand them off to that country’s government without any judicial review.
Srinivasan continues to probe whether or not Munaf applies to Doe’s case. In Munaf, the petitioners voluntarily went abroad to the state to which they were transferred. Doe, too, announced that he was a U.S. citizen in the hopes of being taken to a safe place—which turned out to be Iraq. Does this constitute voluntary entry into Iraq?
Hafetz says no, noting that Doe was fleeing toward Turkey at the time. He emphasizes that Doe’s right to challenge his transfer is rooted in the Due Process Clause and the separation of powers.
Wilkins asks whether the Non-Detention Act is doing any work here, noting that neither the government nor the ACLU cited the statute in the briefs. Hafetz is happy to argue that the Act bolsters the ACLU’s argument that the government has no authority to detain a U.S. citizen except pursuant to an act of Congress. After Wilkins asks whether Munaf required positive legal authorization for transfer, Hafetz again points to the 2002 AUMF.
So, Wilkins asks, must the positive legal authorization required for transfer come from the same source as the positive legal authorization required for detention? It could be, says Hafetz, but it doesn’t have to be.
Srinivasan returns to the question of whether the standard of authorization must be higher for detention or for transfer. Hafetz says that if Doe were determined to be an enemy combatant by the courts under the AUMF such that the AUMF would authorize his detention, it’s possible that the AUMF might also permit his transfer in some circumstances. But the government isn’t arguing that here, he points out. And if it’s not arguing that they have the authority to detain Doe, how can it have the authority to transfer him? He’s trying to cut through to the merits of Doe’s habeas claim, which the government has done its best to avoid.
The government reads Munaf as holding that any prescriptive jurisdiction is sufficient to authorize transfer, Wilkins says. What’s wrong with that reading?
Hafetz takes the opportunity to remind the panel that he was counsel in Munaf—implying that he should know what he’s talking about. (He doesn’t mention that he lost the case.) The government’s reading of the case is “unbounded,” he argues. Munaf involved a case in which petitioners traveled voluntarily to a country in which they were accused of committing crimes—which is not the situation here. And Munaf requires territorial jurisdiction, not just any prescriptive jurisdiction.
He closes by clarifying the structure of the ACLU’s argument: First, the ACLU wants positive legal authorization for Doe’s transfer; if it can’t get that, the group wants to see territorial jurisdiction over Doe on the part of the country to which he’s transferred. He also flags that Doe is a dual citizen, unlike the petitioners in Munaf.
Burnham gets two minutes for rebuttal, but instead he asks that the court switch over to the closed session. The courtroom clears out, to ensure that no one finds out that the government wants to transfer Doe to Saudi Arabia.