Doe v. Mattis: The Fact Dispute in the U.S. Citizen Detainee Case

By Robert Chesney
Tuesday, February 20, 2018, 2:37 PM

After months of procedural wrangling, the merits at last have been joined in Doe v. Mattis (a habeas corpus petition brought by the American Civil Liberties Union on behalf of a U.S. citizen held in U.S. military detention in Iraq on the ground that he was a fighter for the Islamic State). Links to the relevant documents are here (Doe’s habeas petition), here (the public version of the government’s return and supporting evidence), and here (Doe’s response). This is the first of two posts today providing brief explainers concerning these merits questions. This one focuses on the factual dispute in the case.

We have long known that John Doe is a dual U.S.-Saudi citizen and that he came into U.S. military custody after the U.S.-allied Syrian Democratic Forces captured him in Syria in mid-2017. But we knew little else. It was unclear if the government had any basis to believe Doe was an Islamic State fighter beyond the circumstances of his capture. It was unclear if Doe would deny being an Islamic State fighter. The case could have evolved in many different directions.

Well, now that the government has filed its return, we know considerably more. The government’s case currently appears quite strong, in no small part thanks to Doe’s own social media activity from the period before his arrival in Syria.

Some facts appear to be undisputed. For example, it is undisputed that Doe entered Syria in 2014 and ultimately took on several successive forms of service for the Islamic State. Indeed, the government has possession of a captured database of the Islamic State’s own personnel records, and it includes a file for Doe.

That file identifies Doe as a “fighter” for the Islamic State. But was he?

Doe does not deny that he served the Islamic State in several capacities, but he maintains he was coerced into these roles. His account, apparently, is that he entered Syria not to fight for the group but, instead, to report on the Syrian situation in the capacity of a freelance journalist. In support, he argues that at various points he went AWOL from his Islamic State-assigned duties, and at one point was incarcerated by the Islamic State for doing so.

This might be so. But the government has substantial evidence suggesting otherwise. In particular, it has Doe’s own words. And not from his post-capture interrogation, but rather from his pre-Syria social media activities.

Before leaving his wife and newborn child to go to Syria in 2014, Doe was a prolific pro-Islamic State social media presence. His tweets about (and to) the Islamic State certainly convey the impression that he was an ardent admirer of the group. It is hard to read them and not believe that when he went to Syria, he did so to take part in the Islamic State project. And that in turn suggests that he was exactly what the Islamic State personnel form claimed him to be: a volunteer “fighter,” not a journalist dragooned into service.

Doe may yet come forward with rebuttal evidence. He might, for example, produce a declaration asserting that his social media record was itself a ruse, intended to create a cover that would pave the way for him to operate effectively as a journalist in territory under Islamic State control. At that point, the question would boil down to Judge Chutkan’s an assessment of Doe’s credibility.

For now, though, Doe is not making such an attempt. In his response to the government’s filing, he asks the court to set aside the factual dispute for the moment and to focus, instead, on his purely-legal objections. If and when the government prevails on that legal dispute, then we might learn whether Doe can overcome the implications of his social media history. If he cannot, the government seems very likely to meet its burden of proof in showing him to indeed be the Islamic State fighter that the Islamic State’s won personnel records claim him to be.