Judge Issues Temporary Order Blocking DOD Transfer of U.S. Citizen to Foreign Custody

Pentagon argues it does not need to provide a legal basis for deciding to transfer the unidentified detainee.


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U.S. District Judge Tanya Chutkan issued an order this afternoon temporarily blocking the transfer of a dual U.S.-Saudi citizen detained in Iraq out of the jurisdiction of U.S. courts. Lawyers for the Defense Department (DOD) allege the detainee is an ISIS fighter; the American Civil Liberties Union (ACLU) is representing him.

The order will remain in force only for five days, at which time Chutkan will decide whether to keep it in place or whether the DOD can make the transfer without further review.

At a hearing before Chutkan this morning, the government admitted that, to its knowledge, the man is not accused of or wanted for a crime in any other country, nor is the U.S. holding him on behalf of any other country that wishes to charge him later. Under Supreme Court precedent, either circumstance would probably defeat any challenge to the legality of his continued detention.

For months, the DOD has tried to block the unidentified U.S. citizen from even being able to challenge his detention in federal court, as he's currently doing.

At the hearing, lawyers for the Pentagon argued that the DOD did not need to specify or defend a legal basis for turning him over to another country. Saudi Arabia is the most likely recipient, given the detainee's dual nationality.

The ACLU wants Chutkan to enjoin such a transfer for the duration of the ongoing habeas corpus case, arguing it would amount to a continuation of an imprisonment that is potentially illegal.

Government lawyers say Chutkan lacks the authority to prevent them from handing the man over before his case is heard: Courts may not prevent the government from releasing a detainee if it chooses, and the DOD claims that handing him over to foreign custody would qualify as "release from U.S. custody."

Chutkan seemed skeptical of this theory.

These arguments represent only the latest move in the government's monthslong effort to prevent the man, who was turned over to the military by U.S.-backed Syrian rebels, from contesting his classification as an enemy combatant in court.

From the time he entered U.S. custody in September until recently, he was kept completely incommunicado with the outside world, even after he made a formal request for legal representation. By refusing to identify the man or allow him to contact his family or a lawyer, the military effectively blocked the man's ability to initiate the court proceedings that the Supreme Court says military detainees are entitled to, a move that one national security law expert characterized as "constructive denial" of his habeas corpus rights.

When the ACLU asked the court to allow it to represent the man's interests, the government objected on the grounds that the detainee had not authorized the group to proceed on his behalf. Pointing out that this was because the government had deliberately prevented him from communicating, Chutkan ordered the the DOD in December to allow to the ACLU to ask him whether he wanted their help. He did.

In addition to the factual question of whether the man is in fact an ISIS fighter, the case raises a number of interesting unresolved legal questions about the military's authority in the fight against ISIS. Chief among these is whether the Authorization for the Use of Military Force that Congress passed immediately after 9/11 extends to the fight against ISIS. However, these issues become vastly more difficult (and maybe impossible) to settle if the man is handed over to the Saudis in the meantime.

Chutkan's temporary order may suggest she is sympathetic to the prisoner's claims, but it may also prompt the government to file an appeal with the D.C. Circuit, a venue in which overseas terrorism detainees have historically not fared well.