John Doe v. Mattis
| Decision Date | 07 May 2018 |
| Docket Number | C/w 18-5110,No. 18-5032,18-5032 |
| Citation | 928 F.3d 1 |
| Parties | John DOE, Appellee v. James MATTIS, in his Official Capacity as Secretary of Defense, Appellant |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
James M. Burnham, Attorney, U.S. Department of Justice, argued the cause for appellant. With him on the briefs were Jessie K. Liu, U.S. Attorney, Matthew M. Collette and Sonia M. Carson, Attorneys. Catherine H. Dorsey, Attorney, entered an appearance.
Jonathan L. Hafetz, Brooklyn, NY, argued the cause for appellee. With him on the briefs were Arthur B. Spitzer, Washington, DC and Hina Shamsi, New York, NY.
Before: Henderson, Srinivasan, and Wilkins, Circuit Judges.
Opinion for the Court filed by Circuit Judge Srinivasan, with whom Circuit Judge Wilkins joins.
This case involves a United States citizen who has been detained by the United States military in Iraq for several months. He seeks release from military custody in a habeas corpus action brought under the pseudonym John Doe. Doe is a citizen not only of the United States but also of Saudi Arabia.
Doe was initially captured in Syrian territory controlled by the Islamic State of Iraq and the Levant (ISIL). The Department of Defense determined that he is an enemy combatant for ISIL, and the Department has been detaining him at a military facility in Iraq. Doe's habeas petition contends that he must be released because, he claims, ISIL combatants do not come within any existing authorization for use of military force. He also contends that he is not in fact an ISIL combatant. At this stage of the proceedings, no court has addressed the merits of those claims.
This appeal instead concerns a separate claim by Doe: that the government, while his habeas petition remains pending, cannot forcibly—and irrevocably—transfer him to the custody of another country. Transfer of Doe to another country's custody would, naturally, obviate any occasion to seek release from physical custody at the hands of the United States. In connection with the possibility of Doe's forcible transfer to the custody of another country, the district court has entered two orders we now review.
In the first order, the court required the government to give 72 hours' notice before transferring Doe to the custody of any other country. The notice period was meant to afford the court an opportunity to review the circumstances of a planned transfer before it takes place. The government seeks to set aside any obligation to give advance notice with regard to two specific countries. We will refer to those countries as Country A and Country B because of the government's desire to withhold public release of their identities due to apparent sensitivities associated with ongoing or future diplomatic discussions.
The district court's second order came about after the government reached an agreement with Country B to transfer Doe to its custody. The government gave the district court the requisite notice of its intent to transfer Doe to that country. The court then enjoined the government from effecting the transfer. In the court's view, the government had failed to demonstrate the necessary legal authority (, a statute or treaty) for the transfer.
We sustain both of the district court's orders. In claiming the authority to forcibly transfer an American citizen held abroad to the custody of another country, the government ultimately relies on two species of argument. Neither, in our view, gives the government the power to effect its desired handover of Doe to Country B, at least as things currently stand.
The first rationale advanced by the government has no necessary grounding in Doe's designation as an enemy combatant or in the military's authority under the law of war. Rather, the government relies on Supreme Court decisions recognizing that, when a foreign country wants to prosecute an American citizen already present in its territory for a crime committed within its borders, the Executive can relinquish her to that country's custody for purposes of criminal proceedings. See Munaf v. Geren , 553 U.S. 674, 128 S.Ct. 2207, 171 L.Ed.2d 1 (2008) ; Wilson v. Girard , 354 U.S. 524, 77 S.Ct. 1409, 1 L.Ed.2d 1544 (1957). Those decisions, on the government's reading, extend past their facts in two ways: (i) they enable a forcible transfer of a U.S. citizen to a different foreign country than the one in which she is already present, and (ii) they enable a forcible transfer as long as the receiving country has some legitimate sovereign interest in her (whether or not related to criminal prosecution). No. 18-5032, Gov't Opening Br. 23-25.
We cannot accept the government's argument. We know of no instance—in the history of the United States—in which the government has taken an American citizen found in one foreign country and forcibly transferred her to the custody of another foreign country. Under the logic of the government's position, it could pick up an American traveling in Europe and involuntarily relinquish her to, say, the custody of Afghanistan, as long as Afghanistan is thought to have some cognizable sovereign interest in her. We cannot conclude that the government possesses that kind of authority over a U.S. citizen, at least without a statute or treaty specifically providing for it.
The government's second line of argument differs from its first in an important respect: the second argument turns on Doe's status as an alleged enemy combatant and on the military's attendant authority in a time of war. We agree with the government that, if Doe is an enemy combatant, the military can transfer him to the custody of Country B, a partner in the campaign against ISIL. But under the precedents of the Supreme Court and our court, two conditions must exist for an American citizen to be subject to military transfer or detention as an enemy combatant: (i) there must be legal authority for the Executive to wage war against the enemy, and (ii) there must be an opportunity for the citizen to contest the factual determination that he is an enemy combatant fighting on behalf of that enemy. See Hamdi v. Rumsfeld , 542 U.S. 507, 517, 533, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004) (plurality opinion); Omar v. McHugh , 646 F.3d 13, 24 (D.C. Cir. 2011). Neither the legal inquiry nor the factual inquiry has taken place in this case. In the absence of those inquiries, we see no basis to set aside the district court's injunction barring the forcible transfer of Doe to Country B.
What about the district court's order requiring the government to give 72 hours' notice before transferring Doe to either Country A or Country B? Because the government gave notice of the proposed transfer to Country B, the government's appeal of the notice order as it applies to Country B is now moot. With regard to Country A, the government has yet to come forward with any information about the circumstances of a prospective transfer to that country, including the specific purpose or interest that will give rise to the transfer. The government instead seeks ex-ante, carte-blanche authorization to transfer Doe to Country A, regardless of the particular circumstances or reasons, and without any opportunity for judicial review. We conclude that the district court did not err in denying the government that sort of blanket preapproval.
While we sustain the district court's orders, we do so respectful of—and with appreciation for—the considerable deference owed to the Executive's judgments in the prosecution of a war. That latitude of course extends to military decisions about what to do with enemy combatants captured overseas in a zone of active hostilities. Virtually all such decisions will be unaffected by our decision today.
But when an alleged enemy combatant—even one seized on a foreign battlefield—is an American citizen, things are different. See Hamdi , 542 U.S. at 532-33, 535-37, 124 S.Ct. 2633 (plurality); id. at 558-59, 124 S.Ct. 2633 (Scalia, J., dissenting). In that "surely ... rare" circumstance, id. at 571 n.3, 124 S.Ct. 2633 (Scalia, J., dissenting), the Executive's authority to wage war as it sees fit is cabined by the Supreme Court's decision in Hamdi , which requires that a citizen be afforded certain guarantees before the military detains or transfers him under the law of war. Id. at 517, 533, 124 S.Ct. 2633 (plurality); Omar , 646 F.3d at 24. That precedent, in our view, governs the disposition of this appeal.
In September 2017, Syrian Democratic Forces encountered Doe at a screening point on an active battlefield in Syrian territory controlled by ISIL. Doe surrendered, informed the Syrian Democratic Forces that he was an American citizen, and asked to speak to U.S. officials. The Syrian Democratic Forces transferred Doe to the custody of U.S. military forces in the region. The military reached a preliminary determination that Doe is an enemy combatant, and has detained him at a U.S. facility in Iraq for the past seven months.
The military's preliminary determination that Doe is an enemy combatant is based on evidence that he is a member or substantial supporter of ISIL. The evidence against Doe includes the following: the circumstances of his surrender, his statements upon surrender and during detention, and records of his ISIL membership.
ISIL, also known as the Islamic State of Iraq and Syria (ISIS), has been designated as a terrorist group. It controls territory in Iraq and Syria, and has perpetrated and aided terrorism there and around the world, killing several thousand civilians, including American aid workers and journalists. See U.S. Dep't of State, Bureau of Counterterrorism, Country Reports on Terrorism 2016: Chapter 6, Terrorist Organizations (July 2017). Since September 2014, the United States has pursued a counterterrorism strategy against ISIL, and is an active member of...
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