Primer: Can the Trump Administration Transfer an American Citizen Enemy Combatant to Iraqi Custody?

Robert Chesney
Friday, September 29, 2017, 12:49 AM

Two weeks ago, the U.S. military received custody of an as-yet unnamed American citizen who had been captured in Syria by a Syrian Defense Force (SDF) fighter. The Pentagon soon confirmed that the person is being held in military detention as an enemy combatant, somewhere in theater, on the basis that he was a fighter for the Islamic State. Many days had gone by without further information, until today.

Published by The Lawfare Institute
in Cooperation With

Two weeks ago, the U.S. military received custody of an as-yet unnamed American citizen who had been captured in Syria by a Syrian Defense Force (SDF) fighter. The Pentagon soon confirmed that the person is being held in military detention as an enemy combatant, somewhere in theater, on the basis that he was a fighter for the Islamic State. Many days had gone by without further information, until today. In reports from Lolita Baldor for AP and Carol Rosenberg for the Miami Herald, we learn the following:

  1. The person is still in U.S. military custody.
  2. The location of detention is somewhere in Iraq.
  3. The ICRC received notification of the situation earlier this week, and appears to be on the verge of conducting its first visit.
  4. Unnamed “senior officials” in the U.S. government indicated that one possibility for the long-term disposition of the detainee is criminal prosecution in the U.S., but another would be to transfer the person to Iraqi custody so that they can prosecute the person under Iraqi law.

It’s that last bit that stands out of course. Let’s explore it a bit, in case this really is something the administration is pondering.

How did we handle this sort of situation–an American involved with the Islamic State caught in theater–in the past?

The last time this came up, the citizen was brought back to America, prosecuted in federal court, and convicted. (Which is, to be clear, precisely what I think should be done here.)

Mohamad Khweis was an American citizen who traveled to join the Islamic State, but eventually ended up in U.S. military custody. He was repatriated to the United States, charged in federal court with various material support and firearms charges, and convicted by jury trial. As near as I can tell, the sentencing for Khweis happens to be coming up, on October 13.

What about previous examples? Have we ever, in analogous circumstances, turned over a citizen to a foreign government for prosecution?

Actually, we have. It resulted in a 2008 Supreme Court decision—Munaf v. Geren—which the government certainly will argue applies here. Just how analogous the current circumstance is to Munaf, however, is a very interesting question.

The Munaf ruling actually involved two separate citizen detainees held in Iraq, during the earlier phase of U.S. involvement there. The most relevant of the two is Shawqi Omar. In 2004, the U.S. military captured Omar, determining that he was working with al Qaeda in Iraq (the same organization that eventually became the Islamic State). He remained in U.S. military custody for years, but eventually, when U.S. detention policy in Iraq came to focus on transferring detainees to Iraqi civilian custody for criminal prosecution, he was slated to be turned over to the Iraqis. His family brought a habeas corpus petition on his behalf, seeking an order barring his transfer. Eventually, his petition was joined with that of Mohammed Munaf. (Munaf was another American citizen who had been in U.S. military detention, but as to whom Iraqi criminal proceedings had proceeded further even while he remained in the immediate custody of the United States.)

What did the Supreme Court say in Munaf?

The court addressed two overarching questions: Did U.S. courts have jurisdiction in this situation in the first place? And if so, was there a basis on the merits to prevent transfers to Iraqi custody? The court resolved the first question easily enough, in favor of the petitioners. It then proceeded to the merits, this time ruling for the government. That’s the part we need to explore here.

The detainees argued that they were likely to be tortured if transferred, and thus that both the substantive aspect of the Fifth Amendment Due Process Clause as well as the Foreign Affairs Reform and Restructuring Act of 1998 (FARRA) precluded the transfer (or at least warranted further judicial inquiry into the risk).

The Court focused almost exclusively on the due process claim, and went out of its way to emphasize the fact-specific nature of its ruling. The factual circumstances Roberts emphasized included:

  1. The petitioners had gone to Iraq of their own volition.
  2. They were captured there.
  3. They were held there now.
  4. They allegedly committed violations of Iraqi law.
  5. They were in U.S. custody “at the behest of the Iraqi Government pending their prosecution in Iraqi courts.”
  6. The surrounding context involved ongoing U.S. military operations.

In those circumstances, Roberts concluded, an order barring transfer would “interfere with Iraq’s sovereign right to ‘punish offenses against its laws committed within its borders.’”

The court also rejected the counterargument that the situation should come out differently where the transfer would result in a real risk of torture. As to that, Roberts argued that this “concern is to be addressed by the political branches, not the judiciary.” Roberts noted that the express policy of the government was “not to transfer an individual in circumstances where torture is likely to result,” and that the assurances the government provided in this context ended the matter. “The Judiciary is not suited to second-guess such determination,” Roberts wrote, particularly in comparison to the political branches. (Roberts also noted that the situation would of course be different if the executive branch took the contrary view—asserting that torture was likely—though in such a case the executive branch presumably would not then be pursuing and litigating a transfer attempt.)

This remarkable endorsement of strong deference led three of the justices—Souter, joined by Ginsburg and Breyer—to state in a concurrence that they would reach a different conclusion in the event that “the probability of torture is well-documented, even if the Executive fails to acknowledge it.” The majority, however, was with Roberts.

The demise of the due process claim left the statutory version of that argument. The court might have simply dismissed it with reference to the same reasoning. But it did not. Instead, it argued that the FARRA issue had not really been briefed and asserted adequately, and hence the Court simply declined to reach it on the merits. (Roberts did include a footnote in order to flag a pair of FARRA-specific arguments that might be further obstacles to success for the petitioners, but that was all dicta.)

Can the due process holding be distinguished?

For all the obvious analogies between Omar and the unnamed current detainee, there are some obvious distinctions as well. Two stand out.

First: Whereas Omar was captured while already in (and allegedly committing crimes in) Iraq, the current detainee was captured in Syria by the SDF and then brought to Iraq by U.S. forces. It may turn out that the detainee actually had been in Iraq before, or had done things with direct impact in Iraq, but barring such muddying factors this distinction will create at least the possibility of distinguishing Munaf. The government presumably would argue that capture in Syria is not significant so long as Iraqi criminal law clearly applies to the detainees conduct, on the theory that what Munaf ultimately is concerned with is vindicating Iraq’s sovereign right to enforce its valid criminal laws. Whether that would do the trick is hard to say, obviously.

Second: It is not yet clear that the government of Iraq has asked the United States to hold the current detainee in order to facilitate an Iraqi prosecution. Perhaps that request has been made, or soon will be. But absent actual evidence that Iraq itself wishes to prosecute this person, the analogy to Munaf necessarily collapses.

Any other considerations to bear in mind, apart from those factual distinctions?

Do not lose sight of the fact that in the travel ban litigation, and in many other ways large and small, the Trump administration has created a circumstance in which courts appear less deferential to the executive branch’s security-related factual assertions than one might normally expect. It does not follow, of course, that today’s courts will depart from Munaf’s strong statement of a deference obligation in that particular setting. But still...

Nevermind the Munaf-ish due process claim. What about other claims, like the FARRA issue that the Court did not reach?

On remand from the Supreme Court, Omar filed an amended petition that pushed the FARRA argument among others. Ultimately, the D.C. Circuit concluded for a host of reasons that the claim was not viable. The details are rather complicated, and for a strong criticism of the result there you can read this 2012 post from Steve Vladeck, which stitches a lot of the complexities together. I will not attempt a recap here; I am sure Steve and others will have a detailed assessment on the current status of things soon enough, and I’ll update this part of the post once something like that is available.

Stay tuned.

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.

Subscribe to Lawfare