By any account, yesterday’s (still-classified) D.C. Circuit ruling in Doe v. Mattis, in which a divided panel appears to have affirmed the district court’s injunction barring the transfer of a dual-US/Saudi citizen held by the US military in Iraq as an “enemy combatant” to Saudi Arabia, is a Very. Big. Deal. Bobby Chesney had a thorough pre-argument primer on the substance of the transfer issue, but suffice it to say that it appears that the D.C. Circuit has held that, at least where an American citizen is being transferred to a country other than the one in which he was captured or is being detained (even a country in which he holds dual citizenship), the government needs some affirmative legal basis for the transfer (and none exists here).
There will surely be much more to say about the majority opinion by Judge Srinivasan (pictured) and Judge Henderson’s dissent once they’re publicly available. For the moment, I just wanted to offer two observations about where things stand in this litigation more generally—and why, although I suspect I’ll be deeply sympathetic with the majority opinion, I’m still more than a little troubled by where things stand as of this morning:
First, the secrecy of all of this is more than a little ridiculous. It’s true that the government has never publicly admitted that the country to which it is trying to transfer Doe is Saudi Arabia, but it’s been (1) accidentally disclosed in several briefs; (2) clearly referred to at one of the oral arguments in the district court; and (3) widely reported elsewhere. To preserve secrecy at this point (including the non-release of the 79 pages of opinions apparently handed down yesterday) over such a non-secret is exasperating. More than that, if the government chooses to appeal yesterday’s decision to the Supreme Court (as I suspect it will), it will confront the important but often overlooked fact that the Supreme Court has never heard an argued case in which there was more than a small (and mostly immaterial) quantum of classified information, and it is has never had a classified argument session. It seems to me that the government is going to want and need to declassify the fact that we’re talking about Saudi Arabia before it gets to the Supreme Court—all the more reason to just do it now.
Second, and far more importantly, the continuing litigation maneuvering over Doe’s potential transfer (whether to Saudi Arabia or some other country) has completely obscured what is the real merits question in his case, i.e., whether he is subject to U.S. military detention as an “enemy combatant” in the first place. That question, in turn, implicates whether the 2001 Authorization for the Use of Military Force (AUMF) covers ISIS—perhaps the central unanswered legal question in contemporary U.S. counterterrorism law and policy. And it’s complicated by the Non-Detention Act, which requires specific congressional authorization for the detention of U.S. citizens. Reasonable minds can (and do) disagree about the answer to this question. But Doe was taken into custody in early September—eight months ago.
Last November, when Doe had been detained for only 11 weeks, I wrote the following about the dangerous precedent that his case was setting:
In ordinary criminal cases, the Supreme Court has held that the Constitution requires suspects to be brought before neutral magistrates within 48 hours of their arrest. Such a short window is, of course, impractical for individuals picked up by the military overseas. But if 48 hours is too short, 11 weeks is far too long. Once a habeas petition is filed, courts should give the government days, not months, before requiring it to defend the detention of its own citizens without charge. After all, without the judicial review that the government has so far been able to avoid, how can we be so sure that the prisoner is, in fact, an “enemy combatant”? And what’s to stop the government from holding any of us without charge for 11 weeks, as well?
Here we are on May 8, with it increasingly likely that the battle over Doe’s transfer is headed to the Supreme Court (which almost certainly would not hear oral argument until October), and there’s still not even a preliminary ruling from the district court over whether Doe has been lawfully detained in the first place. That’s way too long, and it’s a deeply disturbing precedent for how long the government might be able to hold a U.S. citizen in military custody in cases in which there’s even less of an argument that it has the legal authority to do so. (Nothing is preventing Judge Chutkan from issuing such a ruling even as the transfer issue is litigated on appeal; she just hasn’t yet.)
So yesterday’s ruling is a Very. Big. Deal. But the continuing military detention of a U.S. citizen without any judicial validation is much, much bigger.
Image Credit: Chip Somodevilla / Getty