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Turning a Citizen Military Detainee Over to Another Country: The Valentine/Munaf Issue in Doe v. Mattis

Robert Chesney
Tuesday, January 23, 2018, 2:10 PM

In a prior post, I surveyed the affirmative reasons why a judge might prohibit a transfer of John Doe to Saudi or Iraqi custody. I discussed several possible arguments Doe might make, such as fear of torture, transfer-to-defeat jurisdiction, and proxy detention.

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In a prior post, I surveyed the affirmative reasons why a judge might prohibit a transfer of John Doe to Saudi or Iraqi custody. I discussed several possible arguments Doe might make, such as fear of torture, transfer-to-defeat jurisdiction, and proxy detention. I neglected to discuss a very significant issue, however: Might transfer be prohibited by the rule from the Supreme Court’s 1936 decision in Valentine v. United States ex rel. Neidecker? Or is it instead permitted, despite Valentine, by analogy to the court’s 2008 decision in Munaf v. Geren?

What is the Valentine rule?

Valentine concerned American citizens who sought to avoid extradition to France, where criminal charges awaited. America and France had an extradition treaty, but the court concluded that it was best read not to encompass a situation in which a state would be surrendering its own citizens. This was fatal, Chief Justice Hughes concluded, because the executive branch cannot extradite a citizen without a grant of authority to do so found either in treaty or statute. Hughes explained:

It cannot be doubted that the power to provide for extradition is a national power; it pertains to the national government, and not to the states. But, albeit a national power, it is not confided to the Executive in the absence of treaty or legislative provision. … Counsel for the petitioners do not challenge the soundness of this general opinion and practice. It rests upon the fundamental consideration that the Constitution creates no executive prerogative to dispose of the liberty of the individual. Proceedings against him must be authorized by law. There is no executive discretion to surrender him to a foreign government unless that discretion is granted by law. It necessarily follows that, as the legal authority does not exist save as it is given by act of Congress or by the terms of a treaty, it is not enough that statute or treaty does not deny the power to surrender. It must be found that statute or treaty confers the power. (299 U.S. at 8-9.)

Barring evidence that a transfer of John Doe would be pursuant to a statute or treaty, on this view, Valentine at first blush would seem to prohibit any transfer at all.

What is the Munaf exception?

But the Supreme Court recently, in Munaf v. Geren, demonstrated that there are limits to the Valentine rule. In the course of approving the transfer to Iraq of two U.S. citizens held by in American military custody there, the main issue involved the detainee’s fear of torture. In addition, however, the possibility of a Valentine problem naturally arose. As to that, Chief Justice Roberts wrote:

The habeas petitioners rely prominently on Valentine … But Valentine is readily distinguishable. It involved the extradition of an individual from the United States; this is not an extradition case, but one involving the transfer to a sovereign’s authority of an individual captured and already detained in that sovereign’s territory. In the extradition context, when a “fugitive criminal” is found within the United States, “‘there is no authority vested in any department of the government to seize [him] and surrender him to a foreign power,’ ” in the absence of a pertinent constitutional or legislative provision. But Omar and Munaf 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, 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.

So we have here a doctrinal line illustrated by a pair of fact patterns. On one hand, the rule for extradition of citizens from within the United States seems clear enough: The government cannot do it at discretion or as an exercise of some inherent Article II authority, but rather, must have affirmative approval to do it by statute or treaty. On the other hand, that rule drops out at least where the person voluntarily goes abroad to a particular foreign country, is wanted by that country for prosecution based on conduct there, and the U.S. military is holding that person to begin with at the request of that country.

Do we need more information to decide on which side of the doctrinal line John Doe falls?

The essential question before Judge Chutkan now is whether the case should be governed by Valentine or Munaf. Finding the answer is complicated, however, by uncertainty regarding what sort of transfer the U.S. government actually has in mind.

Yesterday the government filed a sealed declaration elaborating its plans. We do not know what it contained, but we do know that Judge Chutkan said in court that the information provided was “deficient.” Spencer Hsu of the Washington Post reported:

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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