Appeals Court Dissects US Bid to Transfer Enemy Combatant

WASHINGTON (CN) – Defending its enemy-combatant designation of a U.S. citizen captured on the Islamic State battlefield, the government told the D.C. Circuit on Friday that courts cannot review its decision to transfer the man from Iraq.

Known only as John Doe, the combatant described as a dual citizen of the United States and Saudi Arabia was turned over to U.S. forces after his mid-September capture by Kurdish forces in Syria.

While the government says Doe fought alongside Islamic State fighters prior to his capture, American Civil Liberties Union Foundation attorney Jonathan Hafetz says his client traveled to Syria to study and write about the conflict there up close and in person.

Doe has been detained in Iraq at an undisclosed location since the Americans took custody of him, but the government now wants to transfer him to an undisclosed third country, the identity of which remains under seal.

Prompting the underlying appeal from Defense Secretary James Mattis, however, U.S. District Judge Tanya Chutkan blocked the Department of Defense from doing so on April 19.

Chutkan had previously ordered the government to provide the court with at least 72 hours notice prior to transferring Doe, which it did on April 16. The ACLU moved shortly thereafter to enjoin the transfer.

Friday’s arguments focused heavily on which case law controls in Doe’s particular circumstances. The ACLU argued that the D.C. Circuit should rule in accordance with the Supreme Court’s 1936 Valentine ruling, which requires positive legal authority – such as a treaty or statute – to transfer an American citizen to a third country.

In Valentine, U.S. citizens fled to the United States after being charged with crimes in France. After U.S. authorities arrested them at the request of the French government, they then sued to stop their extradition to France.

Looking to the Franco-American Extradition Treaty of 1909, the Supreme Court held that the executive branch could not transfer the men.

But with the Munaf decision in 2008 the Supreme Court found Valentine inapplicable. That case involved two Americans who voluntarily traveled to Iraq, committed crimes there, were then detained by U.S. forces and eventually turned over to Iraqi authorities for prosecution.

The Supreme Court held in that case that the men were subject to Iraqi territorial jurisdiction because the United Nations Security Council resolutions gave U.S. forces the power to detain individuals on behalf of the Iraqi government.

Attorneys for the government argued Friday that the circumstances of Doe’s case more closely align with Munaf than Valentine.

“Petitioner voluntarily traveled to an active theater of combat, was captured on a battlefield there, was accepted into U.S. military custody while hostilities were ongoing, and is being held by the military in that same theater of combat pursuant to the Department of Defense’s good-faith determination, supported by extensive record evidence, that he is an enemy combatant,” its brief to the court states.

The only distinction for Doe, the government argues, is that it seeks to transfer him to a third country.

But during oral arguments Friday morning, ACLU attorney Hafetz called the government’s position “exceedingly broad.”

“The government is seeking a significant expansion – an unprincipled expansion – of Munaf,” Hafetz said.

Two prior rulings in Doe’s case from U.S. District Judge Chutkan noted that the government failed to assert the kind of positive legal authority required under Valentine. Chutkan also said that, unlike in Munaf, Doe is not facing criminal charges in the undisclosed receiving country.

The judge was skeptical of the government’s prior arguments that “ongoing bilateral cooperation” would suffer if the transfer did not go through.

“While the United States’ relations with foreign allies is undoubtedly important, the government’s bilateral relations and continued engagement in ‘diplomatic discussions’ with the receiving country does not rise to the level of ‘positive legal authority’ required to justify petitioner’s transfer,” Chutkan wrote on April 19.

Justice Department attorney James Burnham meanwhile highlighted that very argument in his appeal brief.

A decision in favor of Doe “would require an extraordinary amount of judicial oversight over decisions by military commanders, sometimes in the heat of battle, and would interpose the U.S. courts into sensitive diplomatic discussions with key foreign partners in the midst of armed conflicts,” the brief says.

Citing the Supreme Court’s ruling in Hamdi, the ACLU contends that the District Court should rule on Doe’s habeas petition before the government can transfer him.

Hamdi involved an American citizen detained in Afghanistan in 2001 who was accused of fighting for the Taliban. The Supreme Court found that he had the right to challenge his designation as an enemy combatant in court.

But the government says Hamdi applies only if the government decides to continue detaining those captured on the battlefield; in Doe’s case, the government simply wants to transfer him from its custody.

On Friday, Department of Justice attorney Burnham said that the undisclosed third country has jurisdiction to receive Doe under international law, and that it’s unnecessary to go through the process dictated by Hamdi.

U.S. Circuit Judges Robert Wilkins and Sri Srinivasan heard Friday’s arguments. U.S. Circuit Judge Karen Henderson did not appear in the courtroom alongside her colleagues Friday, but will consider the matter based on the audio transcript of the proceedings.

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