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Revisiting the Prosecution Option in Doe v. Mattis: Is the Real Aim Here to Secure a Citizenship Waiver?

Robert Chesney
Thursday, May 10, 2018, 11:24 AM

Prosecuting John Doe seemed unviable at first. Things may be different now.

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Earlier this morning I posted an overview of the D.C. Circuit’s analysis in Doe v. Mattis, affirming a ban on the U.S. transferring John Doe (a dual U.S.-Saudi citizen) from U.S. military custody in Iraq to what appears to be Saudi custody. Assuming it stands, the opinion appears to ensure that Doe’s underlying habeas petition—challenging both the legal and factual bases for holding him as a military detainee under the 2001 authorization for use of military force and the 2012 National Defense Authorization Act—will roll forward to decision. That decision might well go the government’s way (I think it probably should, based on what we know currently), but there’s no guarantee of that. This is one reason why, when this case emerged last fall, it seemed clear that the government’s preference was to prosecute Doe rather than put its legal theories (which undergird vastly more than just John Doe’s detention) to the test in court for the first time.

Early on, we were told that the prosecution option just wasn’t viable. This made sense. We knew almost nothing about Doe at the time, and it was easy to imagine that the government’s only admissible evidence against him would amount to the exceptionally curious circumstance in which he showed up at an SDF checkpoint in Syria. Even that might be hard to prove in court, moreover, if it proved impossible to locate and produce testimony from SDF personnel who were present at that time. And thus, I and others accepted the assertion that prosecution just isn’t a realistic option in this case, and we’ve all moved on to focus on the legal issues associated with detention and transfer.

But wait: We know much more now than we did then regarding Doe, including a fair amount about the inculpatory—and seemingly-admissible—evidence the government does appear to possess. And it sure looks to me like they have enough for a perfectly plausible material-support prosecution. 

Here’s why I say that:

In the course of responding to Doe’s habeas petition on the merits, the government provided an FBI affidavit which lays out in considerable detail the remarkable amount of evidence the government has concerning Doe’s motives for traveling to Syria in the first place. (See here for my post linking to that material and providing a summary.) Much of the government’s evidence involves Doe’s social media activities. If the depictions are accurate, Doe would have a hard time convincing a jury that he really went to Syria as a disinterested freelance journalist; the material strongly suggests he was an Islamic State supporter who traveled there to support and join the group.

The Justice Department has plenty of experience—uniformly successful—prosecuting cases in circumstances at least arguably akin to this. Of course, there are no guarantees, and perhaps the case is weaker than it appears from the outside. Still, the combination of motive evidence drawn from Doe’s own words, and the circumstances that followed, look to me like a perfectly-reasonable basis for a material support prosecution. Looks to me, in short, like the government does indeed have the option of pursuing what almost certainly would turn out to be a 20-year sentence.   

To be sure, this does not in any way constitute a legal impediment to using military detention. If Doe is within the scope of the 2001 AUMF and the 2012 NDAA, then he is detainable regardless of whether the government might choose instead to pursue criminal charges against him. But this does call into question the policy wisdom of driving forward with the detention option now that high-stakes litigation is underway and driving towards an interpretation of the scope of the AUMF. We might then ask: Is there a separate reason to disfavor prosecution—a reason not mentioned before but perhaps doing more work here than we in the public realized?

Perhaps this is not about lack of evidence, but rather about finding a way to keep John Doe out of the United States permanently. 

Doe apparently has birthright citizenship, and thus is not subject to proceedings to strip his citizenship through denaturalization. Thus he cannot be removed from the United States if he wants to stay once he is here, nor can he be be barred from entering the United States if and when he is freed overseas and can find a way to get here.

Notably, the same was true with Yaser Hamdi, another dual-citizen held in U.S. military detention more than a decade ago. Hamdi famously litigated to challenge the government’s right to hold him under the 2001 AUMF, just as Doe is doing now. Hamdi “won” in the sense that the Supreme Court held that the government must give him the chance to litigate the factual basis for his detention, but he flat-out lost on his bid to show that he was outside the legal scope of the AUMF. And at that point the government cut a deal with him: He renounced his U.S. citizenship, and the government sent him home.

It is easy to imagine that the government was hoping, and perhaps still is hoping, for the same outcome here.

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.

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