The Central Issue Before the D.C. Circuit on Friday in Doe v. Mattis

By Robert Chesney
Wednesday, April 25, 2018, 7:00 AM

When the D.C. Circuit hears oral argument in Doe v. Mattis this Friday morning, the central question before it is whether John Doe’s unusual circumstances fall within the scope of the Supreme Court’s 1936 Valentine decision or, instead, its 2008 Munaf decision. That is a harder question than the district court’s two brief opinions on the matter suggest.

If Valentine controls, the government indeed loses. Valentine, when applicable, requires an affirmative grant of authority from a statute or treaty before an American citizen may be sent involuntarily into the hands of a foreign government. And there is no such statute or treaty relevant to the proposed transfer of Doe to Saudi Arabia, as the district court correctly observed last week. But does Valentine control?

The Valentine rule does not control all citizen-transfer scenarios. This is undisputed (or at least should be). In 2008, the Supreme Court expressly limited Valentine, in its Munaf decision:

... Valentine is readily distinguishable. It involved the extradition of an individual from the United States; this is not an extradition case, but one involving the transfer to a sovereign’s authority of an individual captured and already detained in that sovereign’s territory. In the extradition context, when a “fugitive criminal” is found within the United States, “‘there is no authority vested in any department of the government to seize [him] and surrender him to a foreign power,’ ” in the absence of a pertinent constitutional or legislative provision. But Omar and Munaf voluntarily traveled to Iraq and are being held there. They are therefore subject to the territorial jurisdiction of that sovereign, not of the United States. Moreover, as we have explained, the petitioners are being held by the United States, acting as part of MNF–I, at the request of and on behalf of the Iraqi Government. It would be more than odd if the Government had no authority to transfer them to the very sovereign on whose behalf, and within whose territory, they are being detained.

If Doe’s fact pattern fit the paradigms of either Valentine or Munaf, this would not be a hard case (at least as to the transfer issue; the merits of the underlying habeas battle are something else). But Doe’s fact pattern has elements of both precedents. Like the citizens in Munaf, he voluntarily went abroad to a foreign combat zone and was captured there. Unlike them, the government is not proposing to transfer them to that host government so that the host government can prosecute them for crimes committed within its jurisdiction. But unlike the citizen in Valentine, Doe is also a citizen of the country to which the U.S. proposes to transfer him (Saudi Arabia); that country may not have a sovereign’s interest in prosecuting crimes that occurred within its jurisdiction, but it has the exact same citizenship-based sovereign’s interest that the United States itself possesses in relation to Doe (and perhaps more so, given his much more substantial ties to Saudi Arabia).

It seems to me that reasonable minds can disagree about how to extract larger principles from the two precedents and how those principles might then cash out when brought to bear on Doe’s unusual situation. Perhaps the voluntary journey into a combat zone, combined with the Saudi’s citizenship-based interests, are enough to extend Munaf. Or perhaps the lack of a prospective prosecution rooted in the territory of capture, combined with the inherent important of a citizen’s liberties, should combine to produce an extension of Valentine. But there should at least be an explicit reckoning with this challenge. Neither of the district court’s two opinions (first, in January on the 72-hour notice rule and then last week on the transfer-ban) have provided clarity; the court has simply dismissed Munaf as distinguishable and assumed that Valentine (though also distinguishable) must control. This should be the central issue before the appellate panel this Friday.