WASHINGTON (CN) – Explaining why it refused to let an undisclosed country take custody of a man suspected of fighting for the Islamic State group, the D.C. Circuit noted that the U.S. government’s maneuver appears unprecedented.
“We know of no instance — in the history of the United States — in which the government has taken an American citizen found in one foreign country and forcibly transferred her to the custody of another foreign country,” U.S. Circuit Judge Sri Srinivasan wrote Wednesday, joined by U.S. Circuit Judge Robert Wilkins.
The partially redacted 79-page opinion replaces one that the court released Monday under seal — accompanied by an unsigned judgment.
In their bid to transfer the man known only as John Doe, the government said that the interest in Doe by the unidentified third country is all the justification it needs.
Srinivasan found the argument lacking.
“Under the logic of the government’s position, it could pick up an American traveling in Europe and involuntarily relinquish her to, say, the custody of Afghanistan, as long as Afghanistan is thought to have some cognizable sovereign interest in her,” Srinivasan wrote. “We cannot conclude that the government possesses that kind of authority over a U.S. citizen, at least without a statute or treaty specifically providing for it.
A dual citizen of the United States and Saudi Arabia, Doe has denied being an enemy combatant. He was in Syrian territory controlled by the Islamic State when Kurdish allies captured him in September, and the U.S. military has held Doe without a charge in Iraq since that time.
In Wednesday’s ruling, Srinivasan found no support for the government’s actions in the Supreme Court’s 2008 decision Munaf v. Green, which involved two Americans whom the United States turned over to authorities in Iraq for prosecution for crimes they committed there.
Pointing to the Supreme Court’s 2004 ruling in Hamdi v. Rumsfeld, Srinivasan said the United States can transfer an enemy combatant only if the legal authority for the executive branch to wage war against ISIS exists, and if Doe has an opportunity to challenge his status as an ISIS combatant.
“Neither condition has been met at this point. Until those conditions are satisfied, the Executive lacks power under the law of war to transfer Doe to Country B on the basis of his status as an alleged ISIL combatant,” the opinion says.
The American Civil Liberties Union Foundation had argued that the U.S. military lacks the legal authority to detain Doe since no law allows the U.S. to detain ISIS members.
In its habeas corpus petition on Doe’s behalf, the ACLU said Doe must be released or prosecuted in a U.S. federal court.
The issue of Doe’s transfer has sidetracked his habeas case, which turns on whether 2001 and 2002 AUMFs, short for authorizations for the use of military force, empower the government to detain ISIS members.
The government says the AUMFs confer authority to detain Doe as a member of ISIS, but the ACLU disagrees.
Since 9/11, law-of-war habeas petitions have only been brought by members of the Taliban or al-Qaida.
ACLU spokesman Josh Bell noted that the D.C. Circuit’s ruling clears the way for the District Court to now schedule a hearing on the AUMFs, even if the government decides to appeal the D.C. Circuit decision blocking Doe’s transfer.
“This is an individual who claims he has done nothing wrong. And he’s been in detention for eight months,” Bell said in a phone interview. “We think it certainly would be appropriate to start considering both.”
Bell said the ACLU has been able to communicate regularly with Doe, though not in person, since December when the district court ordered the government to provide the ACLU with access. He also said the ACLU is hopeful it will be able to meet with Doe in Iraq at some point.
Until the District Court rules on the legality of Does’ detention under the AUMFs, both the ACLU and the government have agreed to delay delving into the factual question of whether Doe is in fact an ISIS combatant as the government contends.
“If the government prevails on the legal question, we will be contesting whether our client is actually properly considered to be part of, or affiliated with ISIS in the first place,” Bell said.
U.S. Circuit Judge Karen Henderson wrote in dissent Wednesday that the colleagues’ decision “portends a hazardous expansion of the judiciary’s role in matters of war and diplomacy.”
“And worse than the order’s novelty is its effect: it disrupts military operations and sovereign-to-sovereign relations half a world away,” the dissent says.
Henderson said Hamdi pertains only to ongoing military detention, not to transfers.
“Hamdi does not empower a court to enjoin our military from transferring a battlefield captive not facing extended detention,” Henderson wrote.
Kerri Kupec, a spokesperson with the Department of Justice, said the agency is still considering whether to further appeal the D.C. Circuit ruling.
“The safety and security of all Americans is a top priority for this administration. This individual’s alleged activities with ISIL implicate numerous national security, law enforcement, international relations and foreign policy concerns,” Kupec said in an email, using an alternative abbreviation for the Islamic State group. “Both domestic and international law confer on the U.S. military broad discretion over battlefield operations, including the transfer of individuals captured on overseas battlefields. We are reviewing the decision and considering our next steps.”