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.

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  1. 72 hours.

    So, they’ll ‘notify’ the ACLU by calling up their office at 8PM on Thursday night and leaving a voicemail on the machine (while sending a receipt-requested letter through the USPS – so it won’t get there until *next* Thrusday and require a trip to the post office to sign for), the ACLU will scramble on Friday morning to get the paperwork in before the judge leaves for an early weekend at lunchtime, and the prisoner will be shipped out on Sunday.

    Then, come Monday morning, the judge will be pissed and yell at the military lawyer who will simply shrug his shoulders and say ‘nothing to do with me’.

    And nothing else happens.

  2. If only the Supreme Court stood up to Congress and the Executive Branch like this judge has.

    It could be an isolated action by this judge but she deserves a cookie for this one.

  3. It should be reversed, Ex Parte Quiren was pretty clear that even if you are an American Citizen if you act like an enemy soldier you get treated like an enemy soldier.

    I’m not quite sure I get the Liberatarian’s angle on the whole US citizen thing: it shouldn’t matter if you are citizen or have a visa if you want to live or work here, no matter how you get here, legally or not. But by god once you are an American citizen you rape and pillage alongside foreigners fighting against the US or our allies, and if you get caught you get due process, presumption of innocence, and your buddies get Gitmo.

    1. Have you ever heard the phrase “innocent until proven guilty”?

    2. even if you are an American Citizen if you act like an enemy soldier you get treated like an enemy soldier.

      You of course have a link to some evidence that he really was acting like an enemy soldier other than the government’s word. I mean, surely you wouldn’t pop off on the internet without some proof to back up your claims.

  4. Release him from custody at the front gate of the prison complex, after notifying the Iraqis where a suspected terrorist is likely to be and when he’s going to be there (and giving them time to make their own arrangements)?

  5. I am willing to bet a lot this guy is an ISIS fighter. He deserves his day in court though now that he has been caught.

  6. What happens when the DoD forgets there’s an order to retain the guy and through an unfortunate software glitch deletes the paperwork reminding them they’re supposed to maintain possession? Accidents like that have been known to happen.

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