The US intends to relinquish custody of an American citizen accused of fighting for ISIS within days, potentially averting a looming showdown over his detention that is calling into question the legal underpinning of the US war against ISIS.
In a filing entered Tuesday in DC federal court, the government said it plans to transfer the man, identified in documents only as John Doe, to the control of a foreign country, the name of which has been redacted.
Doe is a dual US-Saudi citizen and has been held as an enemy combatant in Iraq since September, when he was turned over to American forces by a US-backed militia in Syria.
The case, pending before Judge Tanya S. Chutkan, has brought rare judicial scrutiny of the post-9/11 Authorization for Use of Military Force, which the government is relying on in part to justify Doe’s detention, and how it applies to ISIS, a group that did not exist when that statute was passed. A Justice Department attorney said earlier this month in court that the government would likely move to dismiss the case as moot if Doe is transferred out of US custody.
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In a sworn statement included in Tuesday’s filing, a deputy assistant secretary at the State Department appears to say the foreign country agreed to accept Doe’s transfer following “extensive diplomatic discussions” and that Doe did not consent to the transfer.
The State official writes that the potential receiving country is not likely to torture Doe upon arrival and has a “strong” and “sovereign interest” in the case.
The official also argues that an order from the court prohibiting or delaying the transfer “would undermine the United States’ credibility with an important foreign partner that has agreed to this request regarding [redacted], including as a demonstration of its commitment to and value of [redacted] bilateral relations with the United States.”
“Failure on our part to follow through promptly on [redacted] transfer could cause harm to our ongoing bilateral cooperation, including on future detainee transfers,” writes the official, whose name, like much of the statement, is redacted.
Chutkan ruled in January that the government must provide 72 hours’ notice to Doe’s attorneys before transferring him to another country’s custody so that they could mount an emergency challenge. The government’s appeal of that decision is pending before the DC circuit court and was argued to a three-judge panel earlier this month. The government entered its transfer notice under seal late Monday, and a redacted version of it was made public Tuesday afternoon.
The American Civil Liberties Union, which is representing Doe in his habeas corpus petition, has until midday Wednesday to respond to the government filing. In a statement, ACLU attorney Jonathan Hafetz said “forcibly rendering” Doe to the custody of another country would be an “unconscionable violation of his constitutional rights.”
“The government has no legal authority to detain this U.S. citizen in the first place, and it clearly lacks any legal authority to transfer him to the custody of another government. He should either be charged or freed, not handed over to an unnamed foreign government,” Hafetz said.