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D.C. Circuit Upholds Injunction Barring the Involuntary Transfer to an Unidentified Third Country of a U.S. Citizen Alleged to be an Enemy Combatant

Published online by Cambridge University Press:  17 October 2018

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Extract

On May 7, 2018, the U.S. Court of Appeals for the D.C. Circuit blocked the transfer to an unidentified third country of a dual U.S.-Saudi national detained in Iraq as an alleged enemy combatant. The decision, Doe v. Mattis, also upheld a district court order requiring the government to provide seventy-two hours’ notice before transferring him to another country. In an opinion authored by Judge Srinivasan and joined by Judge Wilkins, the court emphasized that while it was “respectful of—and with appreciation for—the considerable deference owed to the Executive's judgments in the prosecution of a war,” “things are different” for alleged enemy combatants who are U.S. citizens. Further proceedings in the district court could potentially address whether the U.S. military campaign against the Islamic State of Iraq and the Levant (ISIL) is lawful under U.S. domestic law.

Type
International Human Rights and Humanitarian Law
Information
American Journal of International Law , Volume 112 , Issue 4 , October 2018 , pp. 759 - 763
Copyright
Copyright © 2018 by The American Society of International Law 

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References

1 Doe v. Mattis, 889 F.3d 745, 747–48 (D.C. Cir. 2018).

2 Id.

3 Id. at 749.

4 Id.

5 Id. (describing Doe's designation as an enemy combatant as a “preliminary determination”).

6 Id. at 750.

7 Id.

8 Am. Civil Liberties Union Found. v. Mattis, 286 F. Supp. 3d 53, 55 (D.D.C. 2017).

9 Doe, 889 F.3d at 750.

10 Doe v. Mattis, 288 F. Supp. 3d 195, 201 (D.D.C. 2018).

11 Doe, 889 F.3d at 747–48.

12 E.g., Chesney, Robert, Enjoining the Transfer of a US-Saudi Citizen to Saudi Arabia: A Doe v. Mattis Update and Initial Preview, Lawfare (Apr. 23, 2018)Google Scholar, at https://www.lawfareblog.com/enjoining-transfer-us-saudi-citizen-saudi-arabia-doe-v-mattis-update-and-initial-preview (observing that “everyone knows already that the deal under examination involved Saudi Arabia”).

13 Doe, 889 F.3d at 750–51.

14 Id. at 751.

15 553 U.S. 674, 705 (2008) (stating that “[h]abeas corpus does not require the United States to shelter such fugitives from the criminal justice system of the sovereign with authority to prosecute them” in denying habeas relief to two American citizens detained by U.S. forces in Iraq who were seeking to block their transfer to Iraqi control for prosecution for alleged crimes committed in Iraq).

16 354 U.S. 524, 529 (1957) (permitting the handover to Japanese authorities of a U.S. serviceman for prosecution for committing a homicide in Japan's territory, noting that a “sovereign nation has exclusive jurisdiction to punish offenses against its laws committed within its borders”).

17 Doe, 889 F.3d at 755. By contrast, the government acknowledged that whenever it seeks to transfer a citizen present in the United States to the custody of a foreign country, it may do so only pursuant to a statute or treaty. See Valentine v. United States ex rel. Neidecker, 299 U.S. 5 (1936) (holding that the executive branch could not extradite to France several U.S. citizens arrested in New York City in the absence of a treaty or statute authorizing this extradition).

18 Doe, 889 F.3d at 755 (also noting that in its argument the government cited to Restatement (Fourth) of the Foreign Relations Law of the United States § 211 (Draft No. 2, 2016)); see also id. at 756 (noting the government's position that prescriptive jurisdiction “extends to ‘any individual with a ‘genuine connection’ to the state, even when the individual is located outside the state's territory”).

19 Id. at 755.

20 Id. at 756.

21 Id. at 758.

22 542 U.S. 507, 509 (2004) (plurality opinion) (concluding that a U.S. citizen detained as an enemy combatant had a constitutional right to “a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker”).

23 Doe, 889 F.3d at 758.

24 Id. at 759.

25 Id. at 760.

26 Id.

27 Id. (quoting Section 1021(a) of the 2012 NDAA, Pub. L. No. 112-81, 125 Stat. 1298 (Dec. 31, 2011), and also referring to Section 1021(c), which in turn provides that the “disposition of a person under the law of war as described in subsection (a) may include … (4) transfer to the custody or control of the person's country of origin, any other foreign country, or any other foreign entity”). By its terms, this provision is intended to clarify certain issues regarding the interpretation of the 2001 Authorization for Use of Military Force. Id.

28 Id. at 760–61.

29 Id. at 762.

30 Id. at 765.

31 Id.

32 Id. at 767. Country A is thought to be Iraq. See Vladeck, Steve, The Four Problems with Judge Henderson's Dissent in Doe v. Mattis, Lawfare (May 10, 2018)Google Scholar, at https://www.lawfareblog.com/four-problems-judge-hendersons-dissent-doe-v-mattis (noting that there is “good reason to suspect that ‘Country A’ is Iraq”). Transfer to Iraq might present different legal issues than those addressed in the Doe decision with respect to third countries because Doe is presently being held on Iraqi territory.

33 Doe, 889 F.3d at 768–69 (Henderson, J., dissenting).

34 Id. at 779 (Henderson, J., dissenting).

35 Id. at 769 (Henderson, J., dissenting).

36 Petition for a Writ of Habeas Corpus, at 8, Doe v. Mattis, 288 F. Supp. 3d 195 (D.D.C. 2018) (No. 1:17-cv-2069 (TSC)), available at https://www.aclu.org/legal-document/doe-v-mattis-aclu-foundations-petition-writ-habeas-corpus.

37 Id.

38 Factual Return, at 8–31, Doe v. Mattis, 288 F. Supp. 3d 195 (D.D.C. 2018) (No. 1:17-cv-2069 (TSC)), available at https://www.aclu.org/legal-document/doe-v-mattis-governments-factual-return.

39 Notice, Doe v. Mattis, 288 F. Supp. 3d 195 (D.D.C. 2018) (No. 1:17-cv-2069 (TSC)), available at https://www.justsecurity.org/wp-content/uploads/2018/06/Doe.pdf (noting that more precise locations were specified in an accompanying filing under seal).

40 Application for a Temporary Restraining Order, at 16, Doe v. Mattis, 288 F. Supp. 3d 195 (D.D.C. 2018) (No. 1:17-cv-2069 (TSC)), available at https://www.aclu.org/legal-document/doe-v-mattis-redacted-application-tro.

41 Joint Status Report of July 19, Doe v. Mattis, 288 F. Supp. 3d 195 (D.D.C. 2018) (No. 1:17-cv-2069 (TSC)), available at https://www.aclu.org/legal-document/doe-v-mattis-joint-status-report; Joint Status Report of July 30, Doe v. Mattis, 288 F. Supp. 3d 195 (D.D.C. 2018) (No. 1:17-cv-2069 (TSC)), available at https://www.aclu.org/legal-document/doe-v-mattis-second-joint-status-report; Joint Status Report of August 13, Doe v. Mattis, 288 F. Supp. 3d 195 (D.D.C. 2018) (No. 1:17-cv-2069 (TSC)), available at https://www.aclu.org/legal-document/doe-v-mattis-third-joint-status-report.