WASHINGTON (CN) – The government says diplomatic issues with Iraq would prevent the military from releasing a dual American-Saudi Arabian citizen there who was captured on the Islamic State group battlefield in Syria back in September.
But the man, identified only as John Doe in court filings, says after 10 months of being held in U.S. military custody in Iraq he doesn’t want to go back to Syria because it’s too dangerous.
During a court hearing Friday, the government said there’s no legal basis in habeas corpus requiring the U.S. to reach a diplomatic deal with Iraq to release him there. The typical practice of the military, according to Department of Justice attorney James Burnham, is to release detainees where they were captured.
Releasing Doe in Syria would amount to returning Doe “to his status quo ante, pre-capture,” Burnham said, noting that Doe traveled to the war-torn country willingly to begin with.
It’s unclear why Doe went to Syria, though his attorney Jonathan Hafetz with the American Civil Liberties Union Foundation say he went there to learn about and study the conflict up close. Hafetz has been careful to note that Doe was trying to flee Syria when he was captured in September by the Syrian Democratic Forces.
The government meanwhile suggested in previous months that Doe was an enemy combatant aligned with IS, but has not designated him as such or charged him with any crime.
The government won’t say where in Syria it wants to release Doe but has told the court it has determined the chosen area is safe.
U.S. District Judge Tanya Chutkan pressed the government on this point Friday during a hearing on Doe’s motion for a preliminary injunction to block to the government from releasing him in Syria.
“Is this basically the safest spot you could find in Syria,” Chutkan asked.
Burnham said the area is under the control of the Syrian Democratic Forces, which he called a U.S. ally in the fight against IS.
But according to the Department of State, any American who willingly travels to Syria should draft a will beforehand.
“No part of Syria is safe from violence,” the State Department’s website says. “Kidnappings, the use of chemical warfare, shelling, and aerial bombardment have significantly raised the risk of death or serious injury.”
Chutkan wondered why, since Doe is not an enemy combatant or a soldier, and is not armed, she should not consider the State Department’s travel warnings on Syria.
“His ability to remain safe is no different than any other American dropped into that area,” Chutkan said.
Later in the hearing Chutkan noted her discomfort with the possibility of making a determination about the safety of the area, which is essentially a military judgment.
“It’s not something I’m anxious to do,” she said.
At the same time, she noted that she must give considerable deference to the government’s determination.
Doe has claimed that the Syrian Democratic Forces abused him while in their custody before they turned him over to American forces, but the government contests this.
Chutkan said she found the government’s evidence persuasive.
“The government’s position is fairly strong that he was in relatively good condition when he was turned over to U.S. forces,” Chutkan said during a roughly hour-long hearing. She wondered if that would negate Doe’s argument that he faces certain torture if release in territory controlled by Syrian Democratic Forces,
“Absolutely not,” Doe’s attorney Hafetz responded.
Hafetz however refocused the argument on how his client would get out of Syria once he’s released there, suggesting the only way Doe could leave Syria is by smuggling himself across the border.
“It is impossible to get out of Syria,” Hafetz said, noting that areas near the border are littered with landmines while border guards shoot at people approaching the border. “They are going to strand him there,” Hafetz said.
The primary issue is that Doe doesn’t have a passport anymore, which Hafetz said will prevent him from crossing the Syrian border into Turkey.
The government has said it would give Doe identifying documents to travel with but Hafetz said it won’t be good enough to get him across the border.
Chutkan reminded Hafetz of how his client got to Syria in the first place.
“He wasn’t just dropped into Syria,” she said. “He crossed a border to get in.”
Later in the hearing government attorney Burnham contested the assertion that no one can get out of Syria.
“That’s just not true,” he said.
Burnham told Chutkan they could release Doe closer to the border, but Hafetz insisted that Doe should be released at a location with a U.S. consulate so he can apply for a passport. According to Hafetz, the government has so far denied Doe’s request to apply for a passport ahead of his release.
Before closing the courtroom for a classified session, Chutkan indicated she would issue a ruling on the matter within one week.