A federal appeals court on Monday upheld a ruling that has blocked the government from involuntarily transferring an American citizen and suspected member of the Islamic State from U.S. military custody in Iraq to a third country.
The reasons behind the court’s decision, written by Judge Sri Srinivasan and joined by Judge Robert L. Wilkins, remained under seal Monday pending a review of confidential material in the case by the government and attorneys representing the man.
Also under seal was the dissent by Judge Karen LeCraft Henderson.
The unusual case has raised significant questions about how the courts balance national security interests with the constitutional rights of citizens.
Attorney Jonathan Hafetz of the American Civil Liberties Union said the opinion “vindicates due process, limits on executive authority, and the protection of an American’s constitutional rights.”
“The president does not get a blank check to dispose of the liberty of U.S. citizens just because international relations or military actions are involved,” said Hafetz, who is representing the man.
A Justice Department spokeswoman said the Trump administration is reviewing the decision and considering next steps.
Spokeswoman Kerri Kupec said in a statement that the man’s alleged ISIS activities “implicate numerous national security, law enforcement, international relations and foreign policy concerns” and that the law provides the U.S. military “broad discretion over battlefield operations, including the transfer of individuals captured on overseas battlefields.”
During oral argument last month, Srinivasan opened by asking the attorney representing the Trump administration whether he could name another case in which a U.S. citizen held in one country was forcibly transferred to another.
“No, not as I stand here,” responded Justice Department lawyer James M. Burnham, who urged the court to defer to the executive branch on matters involving military operations and diplomatic relations.
The ACLU’s Hafetz told the court there must be a legal basis for such a handoff based on a treaty or statute and not “an ad hoc executive deal.”
“They can’t just pluck someone and hand them over . . . based on executive say-so,” Hafetz said.
Srinivasan pushed back on the idea that the man’s presence overseas was not voluntary.
“Why should we treat him as if he’s been involuntarily taken to Iraq?” the judge asked, noting the man invoked his U.S. citizenship to get assistance after his capture.
“He didn’t ask to be taken to Iraq. He asked for help,” Hafetz responded. “They could have brought him to the U.S.”
The D.C. Circuit was already considering the government’s appeal of an earlier ruling from the lower-court judge handling the case, U.S. District Judge Tanya S. Chutkan. In her order, Chutkan required the government to give 72 hours’ notice before transferring the suspect.
The Department of Defense on April 16 told Chutkan it planned to move the man to a third country. Her ruling against the government then put the pending transfer also before the same three appeals judges.
The name of the receiving country has not been made public, but the man is a dual-citizen of the United States and Saudi Arabia. Incomplete redactions of court records that refer to repatriation and Saudi law suggest the receiving country is Saudi Arabia.
The Saudi Embassy in Washington did not provide a comment on the possible transfer at the time of the earlier arguments.
In her opinion, Chutkan described as “disingenuous” the government’s argument that the transfer would amount to release because the man would no longer be in U.S. custody, saying “release from custody and involuntary transfer to the authorities of another country are not interchangeable concepts.”
The case poses a legal quandary for the U.S. government and a “detainee whom it no longer wishes to detain,” as the Justice Department says in court filings.
American officials have said they lack admissible evidence to charge the man with a crime.
If he were released in Iraq, his lawyers have acknowledged, the United States would not be obligated to transport him back to American soil or to protect him from being apprehended by the Iraqi government.
The man is not facing criminal prosecution in the intended receiving country and is not the subject of an extradition request.
“It’s been clear for nearly a century that the government cannot involuntarily transfer a citizen from within the United States absent a treaty or statute,” said Bobby Chesney, an expert in national security law at the University of Texas School of Law.
On the other hand, he said, the rule does not apply for a citizen who voluntarily goes to a war zone and is captured there and the local government there wants to prosecute him.
The case of the suspect being held, Chesney said, “falls between the cracks of those two.”
In court last month, the government emphasized the man had landed in U.S. custody because of his decision to travel to an overseas battlefield.
Wilkins questioned the government’s authority to hold the man and to characterize him as an enemy combatant. The judge also questioned whether the authorization for the use of military force passed by Congress after the Sept. 11 attacks extends to cases with the Islamic State.
“Let’s suppose the government is wrong, and he’s an errant tourist or a journalist.” Wilkins said.
Burnham, the DOJ lawyer, pointed to evidence the man had joined or “substantially supported” ISIS. Government filings show the man told the FBI he worked for the Islamic State guarding a gas field and monitoring civilians.
He claimed he was a freelance journalist who was arrested and agreed to work for ISIS to try to gain release, according to court records. The FBI said it could find no evidence of articles he wrote.
The man has denied being an ISIS fighter, according to his attorneys, who said the government must either charge him with a crime or release him. The man, who grew up in Saudi Arabia and studied engineering in Louisiana, renewed his U.S. passport in 2014. He is married with a young daughter, according to court papers.
The judges did not indicate how soon the panel would rule on the possible transfer.
Missy Ryan contributed to this report.
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