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A Preview of Oral Argument in Doe v. Mattis

Scott Harman
Thursday, April 5, 2018, 6:30 AM

On Thursday, April 5, the D.C.

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On Thursday, April 5, the D.C. Circuit will hear the government’s appeal of a January order enjoining the government from transferring an American citizen currently held in military detention in Iraq out of the country without notice. The order required the government to provide counsel for the detainee, known as John Doe, with at least 72 hours notice before transferring Doe out of Iraq. Judges Karen Henderson, Sri Srinivasan and Robert Wilkins will consider whether the district court exceeded its authority by requiring 72-hour notice.

Factual Background

John Doe is an unnamed dual U.S.-Saudi citizen who has been detained by the U.S. military in Iraq as an enemy combatant since mid-September. Doe, who was born in the United States and became a citizen of Saudi Arabia as a child, attended a U.S. college but left the United States for Saudi Arabia in May 2006. The government alleges that Doe joined the Islamic State) in 2014 and remained a member until his surrender to Syrian Democratic Forces in September 2017. After informing the SDF that he was an American citizen, Doe was transferred to American custody and since been detained at a military facility somewhere in Iraq.

Procedural Background

In early October 2017, the American Civil Liberties Union filed a habeas petition on Doe’s behalf as his next friend, on the basis that Doe’s name had not been publicly released and individuals with next-friend status (such as Doe’s family members) might not have been aware they could sue. Judge Tanya Chutkan formally granted the ACLU “immediate and unmonitored” access to Doe in an order on Dec. 23 to determine whether Doe wished to challenge his detention and, if so, to have the ACLU represent him. Chutkan further enjoined the government from transferring Doe out of Iraq until the ACLU could convey how Doe wished to proceed.

The ACLU informed the court on Jan. 5 that Doe had elected to challenge his detention with the ACLU acting as his counsel. The ACLU’s Jan. 5 filing included a request to “continue the interim relief ... by directing [the government] to refrain from transferring [Doe] until the Court issues a final judgment on the habeas petition.”

The government responded three days later, arguing that the district court’s initial injunction against Doe’s transfer had expired because the ACLU had informed the court of the detainee’s wishes. Furthermore, the government said, imposing any further restriction on transfer violated both Supreme Court and D.C. Circuit precedent under Munaf v. Geren and Kiyemba v. Obama (“Kiyemba II”).

On Jan. 23, the district court declined to enjoin transfer entirely. Instead, Chutkan held that the government was required to provide the ACLU with at least 72 hours notice before transferring Doe. “The Defense Department is not prevented from continuing negotiations or discussions regarding the transfer, or from obtaining further information that might support a transfer.” The court found that Doe was likely to likely to succeed on the merits because neither Munaf nor Kiyemba II spoke directly to the facts at issue. As Bobby Chesney summarized:

Judge Chutkan went out of her way to emphasize that she was not actually deciding the transfer issue at this stage. Because the request for preliminary injunctive relief required some assessment of the merits of the issue, however, she could not entirely avoid it. The judge acknowledged that Munaf represents an exception to the Valentine rule, but decided to read that exception as strictly limited to the particular facts of that case.

Habeas litigation continues in the district court on the merits of Doe’s continued detention. Meanwhile, the government’s appeal asks the D.C. Circuit to decide whether the district court erred in issuing a preliminary injunction requiring the executive to provide opposing counsel with seventy-two hours notice before it transferred Doe from U.S. custody. To be entitled to the preliminary injunction, Doe must demonstrate: (1) that he is likely to succeed on the merits of his claim; (2) that he is likely to suffer an irreparable injury in the absence of the injunction; (3) that the balance of equities is in his favor; and (4) that the public interest favors the grant of an injunction.

The Disputed Precedents

The parties dispute the application, and importance, of three cases: Valentine v. United States ex rel. Neidecker, Munaf, and Kiyemba II.

In Valentine, the Supreme Court held that citizens cannot be extradited to face prosecution abroad based solely on Article II authority. Absent a treaty or authorizing statute, the executive cannot extradite a citizen from the United States to a foreign country.

In Munaf, Chief Justice John Roberts held that Valentine did not prohibit the transfer to Iraqi authorities of two U.S. citizens held by the U.S. military in Iraq:

[Petitioners] voluntarily traveled to Iraq and are being held there. They are therefore subject to the territorial jurisdiction of that sovereign, not of the United States. Moreover, as we have explained, the petitioners are being held by the United States, acting as part of MNF–I [coalition forces conducting military operations in Iraq], at the request of and on behalf of the Iraqi Government. It would be more than odd if the Government had no authority to transfer them to the very sovereign on whose behalf, and within whose territory, they are being detained.

In Kiyemba II, the D.C. Circuit held that the courts cannot grant habeas relief barring the transfer of a detainee to another country or require the government to provide advance notice of that transfer.

As Bobby Chesney has argued:

If a prosecution [of Doe] in Iraq is in order, the facts become quite close to Munaf (yes, John Doe was captured in Syria rather than Iraq, but insofar as Iraq intends to prosecute him for his Islamic State activities it would still have a substantial sovereign interest of a kind that the United States itself routinely asserts). If instead the plan is to release him into Saudi custody, perhaps for some kind of custodial rehabilitation or perhaps some kind of home arrest-and-monitoring, the facts are muddier in cross-cutting ways. One might think that the overriding factor would be his Saudi citizenship (i.e., that the dual-citizenship angle standing alone is enough to distinguish Valentine, or at least that it becomes so when the dual-citizen has lived their entire adult life outside the United States and then later is captured on a foreign battlefield). But then again, the fact pattern at that point is far removed from both Valentine and Munaf, making it impossible to claim that precedent can drive the outcome.

The Government’s Brief

The government argues that Doe cannot demonstrate that he is “likely to succeed on the merits” because the case is governed by Munaf and Kiyemba II. Arguing in the alternative, the government makes three claims:

  1. In light of Munaf and Kiyemba II, Doe failed to show that he is likely to succeed on the merits of his claim to prevent transfer from U.S. custody. Valentine governs the extradition of U.S. citizens from U.S. territory and “does not apply to a wartime detainee who is captured abroad on an active battlefield and held in military custody adjacent to that battlefield.”
  2. Doe failed to show that he will suffer irreparable injury, because habeas corpus entitles him only to release from U.S. custody. It does not touch on whether Doe can be transferred out of U.S. custody.
  3. The district court gave insufficient weight to the government’s interest, specifically the diplomatic concerns that judicial approval of a transfer imposes. The government is actively conducting negotiations regarding Doe’s transfer to an unidentified state, which the judiciary’s involvement could disrupt.

The majority of the government’s brief is devoted to the argument that it has satisfied its burden under Munaf. Among other factors, the Munaf court found that Iraq had a sovereign interest in prosecuting the petitioners, who had committed crimes under the Iraqi government’s jurisdiction; likewise, the government’s brief states that the “Executive Branch has determined that [name of state to which Doe would be transferred redacted] has a legitimate sovereign interest in petitioner.” While the district court ruled that Doe’s case “does not implicate another country’s ‘sovereign right’ to punish offenses within its borders,” as Munaf did, the brief asserts that “certain conduct outside a sovereign’s borders”—including “committing acts against a state’s nationals” and “certain acts of terrorism”—implicates a sufficient sovereign interest to satisfy Munaf. The government states that these factors have been met with regard to Doe and the unnamed state.

The district court held that Doe’s case was distinct from Kiyemba II because in the latter, petitioners “could not be released in the United States,” meaning that the “release” requested was impossible. But the government asserts that the concerns about the feasibility of release in Kiyemba II are equally present here: “[Doe] is detained at a U.S. military facility in Iraq because he was part of or substantially supported ISIL ...”

The government also asserts that the district court gave inadequate consideration to the interests of the executive branch arguing that the “injunction seriously compromises [the] sensitive process [of negotiating a transfer] by creating uncertainty about whether or not it will be possible to implement the transfer arrangements once they are concluded.” The government claims that the notice provision renders any agreement to transfer Doe “contingent” on the judiciary’s approval. That contingency inflicts an “unwarranted intrusion into the decision-making constitutionally reserved to the political branches as an order prohibiting transfer outright.”

Doe’s Response

Doe’s reply to the government’s brief begins by suggesting that the government misstates the question and saying “the government appears to be seeking review of an order that the district court never issued.” Doe argues that the question is not whether the executive may transfer Doe to “any other country ‘that the executive branch determines has a legitimate sovereign interest’ in [Doe].” Instead, the question as whether the district court “lacks all power to restrict [Doe]’s transfer.” Doe asserts that “if there is any possibility that the district court could enjoin the transfer of petitioner to any such country, this Court should affirm the district court’s order.”

On the merits of the district court’s ruling, Doe rebuts the government’s three main points as follows:

  1. The Valentine rule applies whenever “the United States exercises control over a citizen’s liberty” and therefore Munaf and Kiyemba II are not applicable to Doe’s case.
  2. The government mischaracterizes what relief Doe is entitled to under habeas, which is not release from U.S. custody (which would result from his transfer) but liberty more generally.
  3. That the executive’s hypothetical interest in an unrestrained ability to transfer Doe does not trump the “well-established right” to challenge detention.

Similar to the government, Doe’s brief deals in large part with whether Doe has demonstrated that he will likely succeed on the merits. The initial disagreement with the government is whether Valentine is, in any form, relevant to the case. Doe argues that Valentine is implicated anytime the U.S. government exercises control over a citizen—and under Valentine, because there is no treaty or statute that permits transfer, the government is precluded from executing a transfer. Further, Doe claims that Munaf “rested on the black-letter principle that a sovereign possesses exclusive and absolute jurisdiction over crimes committed by individuals who voluntarily travel to its territory, commit crimes there, and are detained on its soil—a principle inapplicable here.” That is, the unnamed state does not have the “legitimate sovereign interest” in receiving Doe to the extent that Munaf requires.

Doe further alleges that the government improperly assumes “the answer to the very question—is Doe a member of the Islamic State—presented in this habeas action.” Doe also states that the government improperly relies on Kiyemba II:

Kiyemba II stands for the limited proposition that where a court cannot enjoin a petitioner’s transfer on any ground, that petitioner is not entitled to pre-transfer notice. The district court’s injunction does not conflict with Kiyemba II for two main reasons. First, Petitioner is challenging the government’s legal authority to transfer him, not (as in Kiyemba II) the executive’s assessment of a risk of torture in the receiving country. ... Second, the traditional habeas remedy of release from custody is still available to Petitioner, as a U.S. citizen, but was not available to the detainees in Kiyemba II.

Finally, Doe disputes the government’s characterization of its interests. Doe argues the government is incorrect to suggest that its interests would be damaged if the district court enjoined a transfer. Specifically, Doe points out that district court would only reject a transfer agreement if it was prohibited by law. Accordingly, “the government cannot have a legitimate interest in unlawfully transferring an American citizen to another country.” Doe also contends that the district court’s limited requirement, a 72-hour notice, does not rise to the level of inflicting substantial harm on the government.

The Government’s Reply Brief

On March 16, the government filed its reply brief, which ended briefing. The government’s reply re-characterizes the nature of the burden that Doe bears in seeking a preliminary injunction, stating that Doe failed to satisfy his burden to demonstrate that he is likely to succeed in blocking a transfer to two unnamed countries. The reply brief frames the government’s request as a narrow request to be able to transfer Doe to two particular countries. “[P]etitioner’s inability to satisfy this requirement is alone sufficient basis to vacate the preliminary injunction as to those two countries.”

The government also pushes back on Doe’s claim that Munaf is separate and apart from this case: “indeed, the petitioners in Munaf were just like petitioner here. They were dual citizens of the United States and another country ... who had been captured in Iraq and were being held by the U.S. military there.” The government further contends that Kiyemba II requires, at minimum, a reversal on the prohibition of transfer to the two unnamed countries. The reply brief concludes by reaffirming that the framing of the question ought to be narrow: “the Government’s position is narrow and reasonable. It is that the Executive’s constitutional and statutory authority over overseas military operations . . . includes the authority to relinquish someone captured on that battlefield, including a U.S. citizen, to a coalition partner in that conflict with a direct and legitimate legal interest in that person.”


Oral argument is scheduled for 9:30 a.m. in courtroom 31 of the Prettyman Federal Courthouse.

Scott Harman is a student at University of Virginia School of Law, where he focuses on national security and cybersecurity law. In 2015, he graduated from McGill University with a B.A. in Honors Political Science with a focus on American government.

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