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Should a federal judge bar the U.S. military from transferring to another country a dual U.S.-Saudi citizen whom we have been holding as an enemy combatant in Iraq for the past several months?
That question is pending before Judge Tanya Chutkan as an ancillary issue in the Doe v. Mattis habeas litigation in federal district court in D.C. (for an overview click here). The point of the habeas petition in that case, of course, is to deny that the U.S. government has sufficient legal or evidentiary grounds to hold John Doe. That is to say, the petition seeks an order compelling the government to release him.
Apparently, the government is interested in the possibility of doing just that. Specifically, it may decide that the best outcome is to release John Doe to another country. The government has not yet said which country is the one to which they’d like to transfer him. The obvious candidates—and the ones mentioned in some of the press reports—are Saudi Arabia (where he is, after all, a citizen) and Iraq (where he might be prosecuted much like any other captured Islamic State fighter). Later today, the government will be filing a sealed declaration with the court shedding more light on its intentions. For now, we can only speculate.
The American Civil Liberties Union, on behalf of John Doe, seeks a court order forbidding any such transfer. More to the point, they seek renewal of the court’s earlier order to that effect, which had preserved the status quo until ACLU could establish their right to represent Doe. The transfer ban then lapsed, and ACLU has moved to renew it. Chutkan held a hearing on the issue today, and in light of the reporting from Katie Bo Williams and others it sounds like she may be inclining ACLU’s way. In the meantime, she already has issued an order directing the government not to carry out a transfer just for the next few days (prior to next Tuesday (January 23), by which time she presumably will have ruled on the question of a longer ban).
What are the questions that this situation raises?
1. Does John Doe himself want ACLU to pursue this course?
Doe remains in U.S. military custody. The Pentagon allowed ACLU attorneys to communicate with him via teleconference in order to comply with the court’s order that the ACLU be given access to determine if Doe wants the ACLU to pursue habeas relief on his behalf. He did, not surprisingly. But it is not at all clear from the public record whether John Doe then or later has expressed a desire to remain in U.S. military custody in Iraq, pending the eventual result in the habeas litigation, rather than be transferred to, say, Saudi Arabia.
No doubt, the ACLU can answer this question easily. Perhaps it did so at the oral argument today. If not, though, it seems the court should resolve this first. It is not obvious that Doe is better off remaining in U.S. custody in order to litigate a habeas case that may well resolve in the U.S. government’s favor. And it could be, too, that Doe would prefer U.S. custody to being transferred to, say, Iraqi custody, yet would prefer transfer to Saudi custody to either. Best to find out, at any rate.
Of course, this question highlights a related matter: Is the Defense Department providing ACLU with reasonable access to Doe in order to conduct attorney-client communications?
Let’s now assume that Doe does support the effort to prohibit transfer, period. What questions then arise?
2. On what ground is the transfer ban sought?
There has to be an affirmative reason why the government should be barred from transferring him.
a. Fear of torture?
One possibility, illustrated by the Munaf litigation (which resulted in a Supreme Court ruling refusing to stop the U.S. military from transferring a U.S. citizen held as an enemy combatant in Iraq to Iraqi custody), is that the detainee faces a substantial risk of torture if transferred. The detainee might still lose, as Munaf illustrated, but that sort of claim is a valid basis for possibly prohibiting transfer. As near as I can tell, however, the ACLU has not made such a claim here.
b. Defeating the court’s habeas jurisdiction?
Instead, the affirmative ground cited is no more and no less than the principle that the government should not be able to avoid habeas review by transferring a detainee out of the court’s jurisdiction. It is certainly true that habeas jurisdiction cannot and should not be defeated by playing a shell game in which the detainee is moved from one jailer to another. But with a caveat I discuss below, this is not a fair description of what the U.S. government appears to have in mind. The U.S. government is proposing to stop detaining John Doe, leaving him in the hands of another sovereign. The court should not force the government to keep detaining someone in order to give the court time to decide if that very detention is lawful. Simply put: if the functional outcome of transfer is that the U.S. government no longer directs or controls detention of John Doe (and barring a fear-of-torture type claim, as noted above) the role of habeas will have run its course.
c. What about proxy detention?
The caveat? Proxy detention.
If there is reason to believe that the receiving state is going to detain John Doe under the direction and control of the United States—that is, if there’s reason to believe the transfer is a sham to perpetuate U.S.-controlled detention but without judicial review—then cases like Abu Ali do support, indirectly at least, the idea of a transfer ban. That is to say: If the functional result of a transfer would be that the U.S. government remains in control of John Doe, then the court’s jurisdiction would remain, and in that case, a ban on transfer to preserve the practical utility of that jurisdiction might be justifiable.
The catch, for the moment, is the lack of information about what a transfer might entail. It’s a bit of a chicken-and-egg problem, in other words. The ACLU can’t make the case that a transfer would result in proxy detention if it has no relevant information.
This suggests that the court might be justified, in the case of an American citizen at least, in requiring some degree of disclosure and review prior to transfer in order to make a determination on whether this would be a proxy detention scenario.
To be sure, the government would likely prevail at that point, for it almost certainly would deny any continuing direction or control of the detention, and the ACLU would be hard pressed to prove otherwise. Principles of deference would play a role as well, cutting further in the government’s favor. All that said, running these traps might be the proper way to proceed.
3. What if the court simply orders an outright ban, full stop, pending the end result of the habeas merits determination?
As Steve Vladeck and I have noted on the National Security Law Podcast, this would likely produce an interlocutory appeal. And in accordance with my comments above, I think the government would win that appeal (after months of litigation, no doubt).