Marine asks Fourth Circuit to lift anonymity in Afghan refugee adoption case

RICHMOND, Va. (CN) — A Marine accused of illegally adopting an Afghan refugee urged the Fourth Circuit Wednesday to vacate a protective order shielding the identities of the child’s family.

An Afghan couple accused Virginia-based U.S. Marine Corps attorney Joshua Mast and his wife, Stephanie, of abducting the husband’s child’s cousin. According to the couple, the child, referred to as Baby Doe in court proceedings, was orphaned at two months old after her parents and five siblings were killed during a U.S. military operation in rural Afghanistan in September 2019.

The parties have litigated extensively in state and federal courts since the Afghan couple filed suit in 2022 seeking $10 million in damages for conspiracy, tortious interference with parental rights, assault, fraud, intentional infliction of emotional distress and false imprisonment.

Before the federal litigation, Bill Clinton-appointed U.S. District Judge Norman Moon granted a protective order allowing the Afghan couple and the baby to proceed under pseudonyms out of fear for the safety of the plaintiffs’ family members in Afghanistan. Two years later, Moon found the Masts in civil contempt in 2024 after the U.S. couple sent photos of the child to a nonprofit, which posted the pictures on its website and social media accounts for a legal fundraising campaign.

The Masts did not appeal the civil contempt order; instead, they appealed Moon’s 2024 ruling, which denied their attempt to lift the protective order. The Masts argue the protective order, which they label a gag order, unfairly allows the public to scrutinize them without knowing the identities of the plaintiffs.

“The gag order is particularly onerous because plaintiffs have repeatedly identified themselves to the news media to generate substantial negative publicity against the Masts and to falsely accuse the Masts of ‘kidnapping,’ which are the subject of the Masts’ counterclaims for defamation and related torts,” the Masts wrote in their brief.

The Masts contend the protective order is subject to strict scrutiny under the First Amendment. To survive a strict scrutiny analysis, the judge must narrowly tailor the order, and it must serve a government interest.

In denying the motion to lift the order, Moon referenced the safety concerns posed to Afghan couples’ families who still live under Taliban rule. According to the husband, if the Taliban learn that they had moved to the United States, they would suspect they worked with the U.S. government.

Attorney John Moran of McGuire Woods, representing the Mast, said the couple’s willingness to speak with the media undermines their claims.

“I personally consider it remarkable in my experience to have an order restricting out-of-court statements in a context where the very party that sought those restrictions is giving media interviews in order to further a public media scrutiny of their case that is designed to tilt public opinion,” Moran said.

Attorney Kevin Elliker of Hunton Andrews, representing the Does, disagreed that the order stops the Masts from participating in public discourse.

“This is not a case about whether the Masts can go and tell their side of the story, about whether they can go and raise money for a legal defense,” Elliker said. “It is simply about protecting the identities of our clients."

Donald Trump-appointed U.S. Circuit Court Judge Julius Richardson sounded sympathetic to the Masts’ effort, stating he believed Supreme Court case law indicates that prior restraints face even stricter restrictions than the strict scrutiny analysis.

“It’s a gag order,” Richardson said.

Richardson pointed to the Fourth Circuit’s ruling in a 2018 case concerning a gag order that imposed stringent restrictions on participants and potential participants in a series of nuisance suits brought against the hog industry in North Carolina.

“Can you tell me the reason why that was a gag order subject to strict scrutiny and this order is not?” Richardson asked. “There is no difference between what that order did and what this order does with respect to a restraint on speech."

Elliker responded that his clients view protective orders and gag orders differently.

Fellow Clinton-appointed U.S. Circuit Court Judge Robert King asked the Masts how they had jurisdiction to appeal the protective order. Moran asked the three-judge panel to view the order as an injunction. An order refusing to dissolve an injunction is subject to appeal.

The Virginia Court of Appeals voided the adoption in 2024, ruling that the Masts were granted custody after misrepresenting facts to a local custody court, which also lacked subject-matter jurisdiction to issue the order. The Masts appealed the ruling and presented arguments to the Supreme Court of Virginia in February. The state’s high court has yet to issue a ruling.

Mast learned of Baby Doe when serving a short stint as an attorney in October and became concerned with the child’s well-being. By then, the U.S. Forces-Afghanistan had begun coordinating the child’s return to her uncle with help from the International Committee for the Red Cross and officials from the Afghan Ministry of Labor and Social Affairs.

Despite being privy to family reunification efforts, Mast petitioned for custody of Baby Doe in the Fluvanna County Juvenile and Domestic Relations District Court. Mast testified that the child was stateless, the search for relatives was unsuccessful, and the child was in urgent need of medical treatment.

At the Afghan government’s request, the U.S. planned to move the child to her uncle’s custody in early 2020. Mast moved for a restraining order to prevent the transfer but was found unlikely to succeed on the merits. Baby Doe was put under the care of her uncle, who transferred guardianship to his son and his wife.

Mast didn’t give up and employed a fellow attorney practicing in Afghanistan to convince the family to send the child to the United States for medical treatment. After the Afghan government collapsed on Aug. 15, 2021, and following more than a year of communication, the couple agreed to come with the child to the United States.

The U.S. under former President Joe Biden claimed that during the chaos of evacuating the country, Mast falsely informed U.S. personnel that the child was his daughter, per both Afghan and U.S. court orders, and provided them with a fraudulent document that he described as an Afghan court order. The child was taken from the Afghan couple when they arrived at Fort Pickett in Virginia in compliance with the Fluvanna court’s final adoption order.

Barack Obama-appointed Chief U.S. Circuit Court Judge Albert Diaz completed the panel. Moran and Elliker did not respond to requests for comment.