WASHINGTON (CN) – Fighting for a reversal Thursday at the D.C. Circuit, the government defended its autonomy when it comes to U.S. citizens captured on the Islamic State battlefield.
U.S. District Judge Tanya Chutkan in Washington handed down the challenged order at issue this past January, telling the Defense Department that it must provide 72 hours notice before transferring a man identified only as John Doe into the custody of another government.
Because of a seal, the record shows only that the government was considering two unnamed coalition partners for the move.
Designated as an enemy combatant, Doe’s identity remains secret as well. The government has described Doe as dual U.S.-Saudi citizen who joined joined the terrorist group more commonly known as ISIS in 2014. Syrian Democratic Forces captured Doe on the ISIS battlefield in Syria around Sept. 12, and he has been held in military detention since that time by U.S. forces in Iraq.
Attorneys at the American Civil Liberties Union Foundation meanwhile note that Doe maintains his innocence, saying he was captured and tortured by ISIS after traveling to Syria to learn about and report on the conflict up close.
At a 90-minute hearing on the case this morning, ACLU Foundation attorney Jonathan Hafetz emphasized that the government has made no claim that Doe participated in hostilities against the United States.
The government argues, however, that Judge Chutkan’s order violates Supreme Court precedent in Munaf v. Geren — another case that revolved around dual citizens who were captured in Iraq and held by the U.S. military.
“Munaf held that the U.S. military could transfer those citizens without the courts ever ‘test[ing] the lawfulness of [their] extrajudicial detention in Iraq,’” Department of Justice attorney James Burnham argued in an appellate brief.
At Thursday’s hearing before a three-judge panel of the D.C. Circuit, Burnham argued that the executive branch is restricted to transferring Doe to a country that has a legitimate interest in him. The two countries being considered meet this requirement, he added.
Denying that courts can assess whether a legitimate interest exists in a particular case, Burnham allowed that the courts could have a role only in determining the scope of legitimate interest.
In response to a question by U.S. Circuit Judge Sri Srinivasan, Burnham said he does not consider Doe’s transfer to a third country as a legal-authority issue.
“I think legal authority is a concept from the extradition context that just doesn’t apply here,” Burnham said. “There has to be a treaty with country A in order to extradite somebody to country A,” he added.
U.S. Circuit Judge Robert Wilkins posed a hypothetical in which a CNN or MSNBC journalist was captured on the battlefield, declared an enemy combatant and then transferred to Siberia. He pushed Burnham to say what role the courts would have in his hypothetical situation if no legal-authority requirement exists.
Burnham said there could be limits on executive power “even if there’s not a legal-authority requirement.” For example, if there was no basis in international law, or any legitimate basis for transfer to a “far-flung” country like Siberia, Burnham said the executive might not have the authority to initiate such a transfer.
Focusing on the Munaf precedent, the ACLU’s Hafetz said the Supreme Court refused to bar transfer in that case because the men were being prosecuted for crimes in Iraq. As such, there was no basis for habeas relief in that case.
Doe’s case is different, Hafetz added, because he’s been held for more than six months and hasn’t been charged with a crime by the U.S. or any other country.
Hafetz said the ACLU Foundation is not arguing that the government can’t transfer him, but that they need the legal authority or judicial review to do so.
Burnham on the other hand asked the court to consider Kiyemba v. Obama, where the D.C. Circuit held that the government cannot bar transfer or be required to provide advanced notice of transfer.
“If the court cannot enjoin transfer – even to prevent continued detention – it can’t enjoin the transfer for no reason at all, just because the petitioner doesn’t want to go to whatever country is at stake,” Burnham said.
But Hafetz said that like Munaf, there was no habeas relief available in Kiyemba.
Chutkan found in the January ruling meanwhile that the circumstances in both cases differed from Doe’s.
The ACLU Foundation claims the government should charge Doe with a crime or release him.
“They can’t forcibly render an American citizen without some source of authority,” Hafetz said Thursday.
For the government, however, habeas protection entitles Doe to release from U.S. custody, but does not protect him from being held in foreign custody.
The government also claims that the lower court ruling interfered with international diplomacy and its ongoing negotiations with two the unidentified coalition partners about Doe’s transfer.
Only Srinivasan and Wilkins were present in court today. U.S. Circuit Judge Karen Henderson was not present, but will consider the matter based on the briefs and the transcript of Thursday’s proceedings.
The D.C. Circuit moved to a closed session after the public portion of the arguments to protect the identity of Doe and the two possible transfer countries.