As readers are likely aware, there has finally been meaningful movement in the case of “John Doe,” an unnamed U.S. citizen who has been detained by the U.S. military in Iraq as an “enemy combatant” since mid-September. On Dec. 23, D.C. District Judge Tanya Chutkan ordered the government to provide lawyers for the ACLU (who had filed a habeas petition on Doe’s behalf on Oct. 5) with “immediate, unmonitored” access to Doe in order to ascertain whether he wished to challenge his detention (and have the ACLU represent him) and blocked the government from transferring Doe to another country (including Saudi Arabia, of which he is also a citizen) in the interim. That access has now been provided—with the ACLU informing Chutkan late last week that Doe does indeed wish to proceed with his habeas petition, and that he does want to be represented by the ACLU.
So now what? At the moment the parties are fighting over when the government must file its return, and whether the court should impose another ban against transferring Doe now that the first one has expired. That said, the case may now be heading towards a merits determination. In this post, we take a preliminary stab at sketching out those merits—which may be closer than appears at first blush, and which may provide further incentive for the government to pursue Doe’s transfer before those merits can be definitively resolved.
- The Merits
It is safe to assume that John Doe will challenge both the legal and the factual bases for his detention. Here are the major issues most likely to arise under both headings:
- Does the AUMF Cover ISIS?
First, and perhaps most importantly, note that this would be the first occasion for a court to address a question that has loomed for several years now: Does the 2001 Authorization for the Use of Military Force (AUMF) extend to the Islamic State? The question has never been in the courts in a serious way before because it pretty much requires a detention case of this kind to ensure judicial review, and no detainee arising out of the conflict with ISIS has previously been in a position to bring a habeas petition. As a result, the Obama and Trump administrations have not really had to confront the possibility that the AUMF is best read not to encompass ISIS (and, by extension, that the detention provisions of the National Defense Authorization Act for Fiscal Year 2012 do not reach ISIS members). This has sapped executive interest in pushing Congress to pass a new AUMF explicitly focused on ISIS, among other things. Should this case go forward on the merits, that level of interest may suddenly change, particularly if and when the courts begin to express doubt on the matter.
Should they doubt it? It is true that ISIS did not exist in 2001 and that it broke with al-Qaeda several years ago after a dispute over control of AQ’s al Nusrah affiliate inside Syria. On the other hand, it’s also true that ISIS is the same organization that previously was known as al-Qaeda in Iraq (AQI, originally led by Zarqawi), that AQI rather plainly was in the scope of the 2001 and 2002 AUMFs during that phase of its existence, and that Congress for years now has knowingly funded large-scale combat operations against ISIS knowing that the executive branch considered it to be within the scope of those statutes. It seems to us unlikely that the ultimate answer emerging from John Doe’s case is that ISIS nonetheless is not covered. But it is hardly implausible that a court would be skeptical—especially as more time elapses since the AUMF—and this surely looms large in the government’s thinking about how to proceed in this case.
- U.S. Citizens and the Non-Detention Act
You might think the AUMF issue would be the end of the matter. But let’s not forget: John Doe is a U.S. citizen (as well as a Saudi citizen, apparently). This means more than that he has the right to pursue habeas review and to receive adequate procedural safeguards in pursuing that relief. It means also that he is outside the scope of the FY2012 NDAA (which expressly reserved the question of detention authority over U.S. citizens) and that he is within the scope of the Non-Detention Act, a 1971 statute that provides that citizens may not be detained except pursuant to an Act of Congress. The Non-Detention Act complicates the analysis regarding whether the AUMF applies to ISIS. Because even if it does in the abstract, it may not be sufficiently clear in that respect so as to satisfy the 1971 law.
In June 2004, the Supreme Court ruled in a remarkably similar case. Yaser Hamdi was an alleged foreign fighter for the Afghan Taliban caught by local U.S. allies in Afghanistan who claimed that he was an arms-bearing fighter. Like John Doe, he was a Saudi citizen but had a claim to birthright citizenship in the United States. He, too, was held as an enemy combatant, but thanks to his citizenship the Supreme Court agreed he had a right to present legal and factual challenges through habeas—to a “meaningful opportunity to contest the factual and legal basis of his detention before a neutral decisionmaker.” That was a loss for the government, but the government won on the larger legal point: The Court accepted that the 2001 AUMF could be read as sufficient statutory authority to overcome a Non-Detention Act objection, despite the AUMF’s lack of express reference to detention of citizens in particular, so long as something along the lines of conventional armed conflict continued to exist in Afghanistan. Here is how Justice Sandra Day O’Connor’s plurality opinion explained the point:
In light of these principles, it is of no moment that the AUMF does not use specific language of detention. Because detention to prevent a combatant’s return to the battlefield is a fundamental incident of waging war, in permitting the use of “necessary and appropriate force,” Congress has clearly and unmistakably authorized detention in the narrow circumstances considered here. ... we understand Congress’ grant of authority for the use of “necessary and appropriate force” to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles. If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel. But that is not the situation we face as of this date. Active combat operations against Taliban fighters apparently are ongoing in Afghanistan. (Emphasis added.)
The highlighted language is the key here. Will the courts conclude that the conflict with the Islamic State likewise remains sufficiently analogous to conventional armed conflict, such that application of combatant detention authority remains proper under Hamdi? For the moment, this seems likely. But mindful that the nature of the conflict in Syria and Iraq has changed in recent months thanks to battlefield success, the government should expect at least some friction on this point.
Finally, keep in mind that, in the case of Jose Padilla—the other U.S. citizen previously subjected to long-term detention as an “enemy combatant”—the Supreme Court appeared ready to split the difference and hold that, at least for Americans, like Padilla, arrested within the United States, the Non-Detention Act does require a clearer statement than that provided by the AUMF (the government mooted Padilla’s case on the eve of its return to the Court in 2006). At first blush, the facts of Doe’s case look more like Hamdi’s than Padilla’s, but the further away the case gets from the facts of Hamdi, the more skeptical courts may—and perhaps should—be of the underlying detention authority question.
- The Factual Basis for Doe’s Detention
Hamdi is clear that Doe is entitled to a meaningful opportunity to challenge the factual basis for his detention, as well—and there is reason to believe that the government is having trouble assembling evidence against him. Indeed, it is clear that, at least for now, they don’t have enough admissible evidence to justify a criminal prosecution. And so the question arises: Is it likely that the government can make a sufficient factual case in a habeas action?
Obviously, we are in no position to know for sure. That said, it is quite possible that the government will have a much easier time in the habeas context.
Thanks to Hamdi and also the GTMO habeas litigation, we have some idea how the courts most likely would approach this issue. Among other things, the burden of proof will be on the government, but the standard likely will be preponderance-of-the-evidence (or, perhaps, clear-and-convincing evidence) and certainly won’t be beyond-a-reasonable-doubt as in the criminal setting. And it is likely that the Federal Rules of Evidence will not apply. This is critical, for it means that hearsay might be admissible, and it seems likely that the one type of inculpatory evidence the government should be able to produce is testimony from U.S. personnel who received custody of John Doe from Syrian allies. Put simply: the American personnel might be able to testify about what those Syrian allies asserted, even if the Syrians themselves can’t be located or otherwise can’t be produced. Needless to say, the lack of opportunity to cross-examine any out-of-court declarants would be a significant problem, and might still cause the judge to discount or even exclude such statements. Yet who knows, it might yet be enough. But remember the denouement in Hamdi: Rather than provide such a hearing, the government entered into a deal to release Hamdi and transfer him to Saudi Arabia—perhaps because of concerns about the sufficiency of its evidence.
- The Transfer Issue
For similar reasons, this case might yet go away. Media reports suggested the government was working on transferring John Doe to Saudi Arabia prior to the habeas litigation heating up, and though unspecified obstacles to that transfer had prevented it from occurring to that point, it is possible the government will move quickly to moot this case via transfer once it is clear that Judge Chutkan is not going to extend her transfer ban. The ACLU has already asked her to extend that ban, arguing that the government should not be permitted to defeat habeas jurisdiction by moving the detainee out of jurisdiction. We think that argument fails, however, insofar as the United States is genuinely relinquishing custody to a foreign sovereign; the government cannot be made to continue to detain someone in order to enable a court to decide if it is legal for the government to detain that someone. The one exception would be if the Saudis would be detaining John Doe as a U.S. proxy—if Doe were, in fact, in the “constructive custody” of the United States even after he was transferred. But there’s no reason, at least so far, to suspect that would happen.
The only remaining issue, then, would be if Doe is entitled to object to his transfer. That, in turn, would depend upon whether he has a substantial claim that he fears torture or other forms of cruel, inhuman, or degrading treatment if and when he is transferred to Saudi Arabia. Given the case law (including the Supreme Court’s closely relevant ruling in Munaf v. Geren), this strikes us as a longshot, at best.
Ultimately, then, it seems likely that this case could go away before Judge Chutkan has a chance to reach and resolve its merits—let alone before those merits provoke an appeal to the D.C. Circuit (which, despite its role in the GTMO habeas litigation, has not reached the merits of a post-September 11 detention case involving a U.S. citizen). If it doesn’t, it stands to be a very important test case for both the broader question of whether the 2001 AUMF covers ISIS, and the more specific question of whether it also covers the detention of Americans allegedly fighting on behalf of that group. And, no matter what happens going forward, it’s already set an important—if troubling—precedent for how long the U.S. government can hold its own citizens before even having to reach, let alone resolve, those merits.
For our further thoughts on these issues, please be sure to listen to Episode 53 of the National Security Law Podcast, posting later today.