Military

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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Wikimedia Commons

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.

NEXT: Tennessee Deputy Who Suffered Panic Attack After Firing At Unarmed Man Had Track Record of Lying and Incompetence at Previous Police Department

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  1. We really need to just stop taking prisoners. Under the geneva convention, that’s allowed if they aren’t in uniform.

    1. Maybe. Republicans, however, put a lot of stock in National Socialist jurisprudence, and those Christian conservatives had a pretty harsh commando law for out-of-uniform resistance fighters.

    2. How uniform does uniform have to be before its a uniform?

      Because the American armed forces don’t have a uniform. Hell, each individual branch doesn’t have a uniform – they have multiple ones – including multiple combat uniforms. For a while the Navy had a different uniform for aviators and aviation support ratings. The purpose of a uniform is to make it easy to distinguish combatants from non-combatants – how does that work when your potential enemy could be dressed in over a dozen different ways. Not counting locally approved variations on standard dress. Then we dress civilian support staff in those uniforms also. So now we’re hiding noncombatants among our combatants – similar to how Hussein did it in 2003 (using the ‘useful idiot’ foreigners that came around.

      And that doesn’t count the people like the spec-ops who are likely operating while wearing something approximating local dress – should they be shot out of hand if captured?

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  2. Look, the guy’s a dangerous terrorist. Just because they don’t have any proof or maybe even evidence, why would they have nabbed him unless it were so? It’s like when cops arrest criminals and then the criminals want to hide behind the Constitution and whine about probable cause and warrants and the right to an attorney and such nonsense. Constitutional rights are only there to protect the innocent, not the guilty. Once the cops arrest a criminal they should just shoot him, why bother with a trial and prison that just wastes time and taxpayer money?

    1. Once the cops arrest a criminal they should just shoot him, why bother with a trial and prison that just wastes time and taxpayer money?

      They’re way ahead of you I think.

      I wonder if people would have bought “tough on crime” as much if it were paired with its corollary “weak on the constitution.”

    2. Hrm… Close, but not quite there. I can actually tell you’re being hyperbolic and not sincere.

  3. “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”

    HA ha!

  4. If we’re not careful, we could wind up living in a dangerous dystopia one of these days.

  5. DOD has an argument for releasing him in Iraq. I don’t see the argument for handing him over to SA.

    1. That’s kind of the way I see it – if they own’t present evidence as to why they snatched him I’m going to assume its because they don’t have any. So they should just put him back where they found him (along with a lunch and a couple hundred bucks).

    2. They don’t have to have an argument for releasing him to anyplace they want. The court has to provide a reason why the Constitution prevents him from being released to SA, which they have failed to do. More foot dragging by corrupt leftist judges desperate to slow things down.

      1. BTW Chutkan is one of the Obama appointees Harry Reid rammed through by eliminating the filibuster when they knew they were going to lose the Senate.

      2. That’s not true at all.

        The USG needs to provide both a reason for arresting him in the first place – otherwise its a prima-facie rights violation – and a reason for releasing him in SA instead of, say, wherever he was picked up in the first place. Or even a reason for releasing him into the custody of the Saudi government. If the guy didn’t commit a crime – and if the government refuses to present evidence he did then the assumption to make is he hasn’t – then the USG has no call to deliver him to Saudi authorities.

        Drop the dude back off where they found him, pack him a lunch and some air fare and call it a day.

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  7. Is the Surface Pro some sort of joke?

    Seriously – like 15 damn confirmations just to make a freaking Windows account, still can’t find my device. But it can find 15 different devices some dude in Brazil has associated with my less than 24 hour old Windows account?

    Now, I’ve downloaded ‘Fallout Shelter’ from the app store. Run it and get a ‘let’s set you up with a sexually transmitted disease’ – no, wait, just an Xbox Live account. Options are ‘do this now’ and ‘maybe later’. except clicking on ‘maybe later’ just closes the window to have it reopen and ask if you want to make an Xbone account.

    I swear, in two years Microsoft has gone from being a decent and open platform to worse than Apple.

    1. Cortana setup was a nightmare. And its still not working right.

      Oh, and now the damn thing won’t let me play unless I let Xbone access the data so it can give me fucking cheevos or some bulllshit.

      1. Its bad enough that they fucking keep reinstalling the garbage apps that come with Windows at every update. This shit is seriously making me consider sending the Surface Pro back and dropping this platform altogether.

    2. Is the Surface Pro some sort of joke?

      What do you expect from a piece of shit knock-off?

      -jcr

  8. Trying to wrap my head around how US courts have jurisdiction in Iraq.

    1. Because US courts have oversight of USG operations and personnel wherever they are operating on government business.

      1. Perhaps, but they certainly do not have any basis to apply US constitutional rights to foreigners on foreign soil.

        1. There are no ‘constitutional rights’.

          There are human rights. Which the US government is supposed to be obliged to not infringe upon (though not necessary obliged to *protect* – except in territory and facilities the USG controls) no matter in what jurisdiction.

        2. The constitution is the entirety of the federal government’s legal authority to exist. It is binding upon all American government officials and employees, at all times, in all places.

          -jcr

        3. “Deflator Mouse: Perhaps, but they certainly do not have any basis to apply US constitutional rights to foreigners on foreign soil.”

          Did you miss the fact that he is actually a US citizen?

        4. “”Perhaps, but they certainly do not have any basis to apply US constitutional rights to foreigners on foreign soil.'”

          Often the rights that apply, are not rights of the citizens per se, but restrictions on government actions. The Constitution does not mention that these restrictions on government are limited to actions against US citizens only.

  9. 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.

    Is the same Pax Americana think that Reason et al used to bitch about? Read Zeitgeist, back in the day.
    After all, shouldn’t Iraq defer to the U.S. justice system?

    1. He’s not in Iraqi custody.

  10. bin Laden won.

    1. He got the 12 virgins?

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  12. the DOD claims that handing him over to foreign custody would qualify as “release from U.S. custody.”

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    The city-state of Fortinone doesn’t kill criminals, oh no: it merely exiles them into the neighboring state of Bauredel, encouraging their speedy departure with a giant piston.
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  14. If he’s a dual citizen, wanted by the Saudi’s… Well we extradite people for crimes in other nations all the time. The question would be if this meets our extradition laws I would suppose.

    This guys sounds like he’s probably a sketchy dirtbag, and I honestly don’t think dual citizenship should be allowed, so PERSONALLY I kinda of say fuck this guy. But they should go by the letter of the law, and that should be our extradition treaties since this fuck is apparently a US citizen.

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