Since this article's publishing, the U.S. District Court for the District of Columbia has released Judge Chutkan's ruling. Read it on Lawfare.
Can the U.S. government transfer a dual U.S.-Saudi citizen, without his consent, from U.S. military custody in Iraq to Saudi custody in Saudi Arabia? This issue has been percolating for a while in federal court, but the case is now heading rapidly towards an answer.
On Thursday last week, a federal judge said no, issuing a preliminary injunction barring the transfer of a man known to the public only as John Doe. The underlying opinion justifying that decision won’t be public until later this week, but it’s reasonably clear from the prior briefing and the reports of the oral argument that the judge’s analysis will rest on one or both of the following rationale. First, it may rest on a claimed violation of the Valentine rule: that is, the rule that a U.S. citizen may not be transferred to the custody of another sovereign absent an affirmative grant of authority for such transfer conferred by statute or treaty (and the further conclusion that there is no such affirmative authority covering Doe’s circumstances). Second, it may rest on the separate argument that it remains to be determined whether the U.S. government has adequate legal authority and evidentiary justification to hold Doe as an enemy combatant in the first instance (see my primers on the legal and factual disputes) and that transferring Doe away to Saudi Arabia somehow improperly defeats the court’s habeas jurisdiction to resolve those questions. Or perhaps the two will be conflated in some way. At any rate, it won’t be the last word, for the government filed its notice of appeal to the D.C. Circuit the next day, and the appellate court is moving quickly on the case.
The D.C. Circuit, not surprisingly, has consolidated this latest interlocutory appeal with a closely related initial appeal, in which the government had sought an order overturning Judge Chutkan’s decision to require 72-hours advance notice of any attempt to transfer Doe. A panel consisting of Judges Henderson, Srinivasan, and Wilkins (well, Henderson was not present at the time) heard argument on that issue in early April (listen here for a post-argument analysis from Steve Vladeck and me on the National Security Law Podcast). They had not yet ruled on the matter when, last week, the government notified the court and Doe’s lawyers that they had a deal in place to transfer him, which is how the current ruling from Judge Chutkan—outright banning the transfer—came to be. Now the same panel will hear an appeal directly focused on the transfer ban.
It's a good thing the lawyers have already rehearsed all these arguments at some length, for the briefing schedule is tight: A first round of “supplemental briefs” are due from both sides by 5 p.m. EST on Tuesday, and another round by the same time on Thursday. Then it’s a possible all-nighter for the advocates, as they will have oral argument Friday morning at 9:30. Lawfare will certainly provide a read-out once that occurs. For now, a few points to bear in mind:
1. During the earlier round of argument, there was an unclassified and a classified session, as the government wished to keep secret the identity of the countries to which Doe might be transferred. During the recent briefing before Judge Chutkan, much of the filings had to be redacted for the same reason. But everyone knows already that the deal under examination involved Saudi Arabia: Officials have confirmed it to journalists, and sloppy redactions made it clear anyway. One hopes that maybe the parties could just have an open argument in light of this?
2. On the Valentine and Munaf issue: In my view, the key to Munaf was that Iraq had a sovereign interest in obtaining custody of those individuals due to their jurisdiction to prosecute, combined with the fact that they voluntarily had entered Iraqi territory in the first place. Transferring Doe to Saudi Arabia is different in that the Saudis (so far as the public record reveals) do not intend to prosecute him, and he was captured in Syria and is now held in Iraq. But the Saudis nonetheless have a sovereign interest of arguably equal stature: Doe is a Saudi citizen—not just an American citizen—and indeed seems to have lived most of his life there. And depending on how you look at the underlying events, he set in motion the relevant chain of events leading to his capture starting in Saudi Arabia. At any rate, I do think that there is ample room for reasonable disagreement on this point.
3. In contrast, I’m mystified by the possibility that the district court may have forbade the transfer in part in order to preserve its habeas jurisdiction—that is, its jurisdiction to decide whether the U.S. government has the authority to hold Doe in the first place—at least absent a showing that the Saudis will be engaging in constructive detention under U.S. direction and control. This raises a fascinating set of questions. Does the detainee have an initial burden of production to place the constructive custody possibility in issue? And if so, should some form of jurisdictional discovery take place? It is hard for me to see how the court could already have moved past these issues to the conclusion that detention would in fact be constructively under U.S. control and, hence, that the transfer could be forbidden on that ground. At any rate, perhaps this will become clearer when the district court’s opinion is released this week.
4. Meanwhile, it would be nice if the district court would move as quickly to resolve the merits of the underlying detention legal dispute as it has moved on the notification and transfer issues.