Late Monday afternoon, the Justice Department filed its court-ordered response in ACLU Foundation v. Mattis, the habeas petition brought on behalf of the unidentified U.S. citizen who has been detained by the military in Iraq as an “enemy combatant” for almost seven weeks. There’s a lot of interesting stuff in here (including the claim that seven weeks in incommunicado detention is still “too soon” to provide a detainee with access to a lawyer; one wonders when, in the government’s view, it isn’t still “too soon”). But not surprisingly, the substantive heart of the government’s opposition is the claim that the ACLU Foundation (“ACLUF”) lacks standing to proceed on Doe’s behalf, because “ACLUF, as an entity that has never met with the John Doe detainee, does not know his identity, much less his preferences regarding the pursuit of habeas relief, and has no relationship with him whatsoever, is not a proper next friend.” 

There is, of course, a circularity to the government’s position: The reason why ACLUF has never met with him, does not know his identify, and has no idea of his views with respect to habeas relief, is because the government refuses to allow access to him by anyone other than the Red Cross (whose job is not to line up lawyers for detainees). But there’s also doctrinal validity to the underlying claim: As a general rule, we don’t allow strangers to sue on behalf of strangers. And as the government notes, the ICRC could have contacted Doe’s family (who surely could have sued as his “next friend”) if Doe so wished. But the government’s implicit claim that Doe has therefore passed up his ability to access judicial review seems more than a little overstated. For starters, we don’t know if the ICRC informed Doe that familial notification was necessary to obtain such review. And if, as Dana Priest reported on Sunday, Doe really did invoke his Miranda rights and “demand a lawyer,” it sure doesn’t seem difficult to fathom that he may have thought he’d be provided a laywer, as a result (and, again, wouldn’t have thought he had to go through the ICRC to get one).

How, then, should Judge Chutkan choose among the horns of this particular dilemma?

She doesn’t have to: Federal courts, as part of their jurisdiction to determine their jurisdiction, have the power to conduct limited “jurisdictional discovery” in cases in which their jurisdiction may turn on potentially disputed facts. And the D.C. Circuit has specifically recognized that a district court is entitled to “considerable latitude in devising the procedures it will follow to ferret out the facts pertinent to jurisdiction.” So it seems to me that Judge Chutkan could cut the Gordian knot by simply conducting very limited jurisdictional discovery—which could be as limited as having the government, under penalty of perjury, deliver a document to Doe that apprises him of the pending habeas petition being brought on his putative behalf, and that asks him to answer three yes/no questions:

  1. Do you consent to the filing of a habeas petition on your behalf?
  2. If so, do you consent to having the ACLUF represent you in this matter on a pro bono basis?
  3. If not, do you consent to having the court appoint a different, qualified lawyer to represent you in this matter?

The government could then file Doe’s answers with Judge Chutkan, and if the answers to questions (1) and (2) are yes, the document will conclusively establish the ACLUF’s standing to proceed as Doe’s next friend. Among other things, this approach (1) respects the limits on the district court’s jurisdiction; (2) allows the government to continue to withhold Doe’s identity pending the identification of an appropriate “next friend” (who would then, presumably, be in a position to litigate that issue); and (3) reflects as minimal an intrusion into the government’s detention operations as any discovery could be, without needing (at least for now) to deal with the government’s assertion that “there is no capability to provide this detainee with an unclassified system for a video-teleconference in a private setting to discuss legal matters.”

Otherwise, I fear that Judge Chutkan will be faced with two equally unattractive alternatives: Side with the ACLU, and risk a reversal by the D.C. Circuit on standing grounds; or side with the government, and endorse what, at least to me, is a potentially limitless theory that would allow for the frustration of judicial review by maintaining incommunicado detention. Jurisdictional discovery, along the lines described above, would seem to split the baby in a way that would do no violence to existing doctrine, or, as importantly, to common sense.

ImageGetty Images / Greg Kahn