Judge Says Defense Department Can't Transfer U.S. Citizen Without Her Permission

The Pentagon must give the ACLU an opportunity to contest any proposed transfer before it happens.


Judge Tanya S. Chutkan
Wikimedia Commons

Somewhere in Iraq, an unnamed American-Saudi dual citizen has been accused of fighting for ISIS and put into U.S. military detention. After winning a protracted legal fight just to get into federal court, he has initiated a habeas corpus suit for his release. The Pentagon says it can transfer him to another country's custody, and thus out of the court's jurisdiction, at any time. U.S. District Judge Tanya Chutkan ruled last night that no, actually, it can't.

The new permanent order (which coincided with the expiration of an interim order barring transfer for five days) was a limited victory for civil libertarians, who have long opposed the military's claim of broad authority to detain terror suspects overseas with limited access to judicial review.

In this case, the government has argued that broad "national security and foreign relations concerns" preclude the courts from reviewing the military's decisions about what to do with terrorism suspects incarcerated abroad, even if they are U.S. citizens. The American Civil Liberties Union (ACLU), representing the prisoner, countered that the government must specify a "positive legal authority" (such as an extradition request pursuant to an established treaty) for transferring a military prisoner, and that a court has the power to review and possibly reject a claim of such authority.

Chutkan largely sided with the ACLU. Her order does not, however, grant the ACLU's request for a complete ban on transferring the man into foreign custody. Instead, it orders the Department of Defense to notify the ACLU at least 72 hours before it plans to move the prisoner to another country, providing an opportunity to contest the transfer at that time.

Ostensibly a compromise between the two parties' positions, this resolution is a deft handling of the case's complex procedural position. Because the government has not specified where it wants to send the man (or indeed, whether it actually wishes to transfer him at all) a blanket ban on any transfer would likely be rebuked as overbroad on appeal. Under current Supreme Court precedent, a valid criminal extradition request would likely provide valid legal basis for a transfer.

But by merely requiring notice prior to transfer, the judge has preserved the ACLU's ability to argue that transfer to whatever country the government may eventually specify as the intended recipient is unauthorized by existing laws or treaties. In this way, Chutkan has effectively frustrated the government's desire to do as it wishes with the detainee without any kind of judicial scrutiny.

The order has no effect on the merits of the imprisoned man's ongoing claim that his detention by the U.S. military is unjustified. Absent an approved transfer out of U.S. jurisdiction, the ACLU says they will continue to pursue those claims on his behalf in the coming months. Although the government's legal basis for the detention has not been publicly specified at this time, it is likely that the controversy will focus on whether the Authorization for the Use of Military Force passed immediately after 9/11 extends to the ongoing military operations against ISIS in the Middle East.