On Monday, the U.S. Court of Appeals for the D.C. Circuit blocked the Trump administration from transferring an unidentified United States citizen, accused of fighting for the Islamic State in Syria, to another country. The detainee, identified only as John Doe, is a dual citizen of the U.S. and Saudi Arabia who has been held without charge since September 2017 when he was captured by Kurdish fighters in Iraq. He was later transferred to the U.S. military in Iraq where he is currently being held.
As reported by the American Civil Liberties Union last November:
For nearly two months, the U.S. military has been detaining an American citizen at a secret jail in Iraq, denying him access to a lawyer and even refusing to release his name. The Trump administration is calling the citizen an “enemy combatant,” claiming he was fighting for ISIS in Syria, but it has not presented any evidence to back up its allegations.
We went to court asking a judge to protect the citizen’s constitutional rights, including the right not to be imprisoned without charge and the right to challenge his detention in court. The Trump administration has told the court that it doesn’t have to respect these essential due process rights.
Despite lacking the evidence to bring charges against the man, the U.S. has labeled John Doe an enemy combatant. The federal government believes this grants the authority to transfer him out of the country without judicial review. The Justice Department has previously argued that the courts have no authority to rule on wartime detentions by U.S. military in an overseas conflict zone. At a November 2017 hearing, the government revealed that the man asserted his constitutional right to a lawyer. The American Civil Liberties Union is currently representing John Doe in court.
According to a report from Courthouse News:
Doe has denied being an enemy combatant in court filings, and the ACLU called it unconstitutional to transfer Doe without a positive legal authority, such as a statute or treaty… The government argued meanwhile that judicial intervention would harm diplomatic relations and “ongoing bilateral cooperation” if the transfer fell through.
The ACLU argued that the law compelled the court to rule on Doe’s habeas corpus petition before the military is able to transfer him. Habeas corpus is a recourse in law which allows an individual to report an unlawful detention or imprisonment to a court and request that the court order a determination of whether the detention is lawful. The U.S. Constitution specifically includes the habeas procedure in the Suspension Clause (Clause 2), located in Article One, Section 9. This states that “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.”
Ultimately, the court ruled 2 to 1 against transferring John Doe to another nation. Jonathan Hafetz of the American Civil Liberties Union Foundation said the ruling vindicates due process and the protection of constitutional rights. “The president does not get a blank check to dispose of the liberty of U.S. citizens just because international relations or military actions are involved,” Hafetz said in a statement.
Robert Chesney, Law Professor and Associate Dean for Academic Affairs at the University of Texas School of Law, wrote that he believes it is likely the decision “will go all the way up to the Supreme Court.” Professor Chesney described the legal considerations of the case:
The central question before it is whether John Doe’s unusual circumstances fall within the scope of the Supreme Court’s 1936 Valentine decision or, instead, its 2008 Munaf decision. That is a harder question than the district court’s two brief opinions on the matter suggest.
If Valentine controls, the government indeed loses. Valentine, when applicable, requires an affirmative grant of authority from a statute or treaty before an American citizen may be sent involuntarily into the hands of a foreign government. And there is no such statute or treaty relevant to the proposed transfer of Doe to Saudi Arabia, as the district court correctly observed last week.
The U.S. government believes it can hold a suspect for a “reasonable period” before deciding whether or not to charge or release the individual. The government also claims that the ACLU cannot represent the man because they have had no contact with him and he has not made a request.
The U.S. government has been holding John Doe for 6 months without charging him for a criminal act, and has sought not only to prevent him from accessing legal representation, but also move him away to a foreign nation where the public would have more difficulty in maintaining awareness of the situation. For the moment, the courts have chosen to side with justice by forcing the U.S. government to prove its case, although the battle over the fate of John Doe continues.