Judge rules US can’t transfer suspected American ISIS fighter to Saudi Arabia

A U.S. federal judge ruled on Thursday, April 19 that the U.S. military cannot hand over a dual citizen suspected of fighting with Islamic State to a third country against his will despite no charges being filed against him.

Judge Tanya Chutkan issued a preliminary injunction against the transfer of the American man who is known as “John Doe” in court records to an unnamed country – likely Saudi Arabia, according to court records.

The man is a dual U.S.-Saudi citizen and was expected to be handed over in the coming days to Saudi Arabia, which has touted its custodial deradicalization program. The U.S. Department of Justice said on Monday that it planned to transfer him to the unnamed country within 72 hours.

“The court is rightly protecting this U.S. citizen’s constitutional rights and checking the Trump administration’s excessive claims of executive power,” ACLU attorney Jonathan Hafetz said after the ruling. “The government cannot do whatever it pleases with a U.S. citizen without judicial review and a basis in law. The long detention of this American is illegal, and forcibly transferring him to another country would have further violated his rights by removing him from the jurisdiction of the American legal system, denying him the opportunity to win his freedom from a U.S. court.”

The detainee is the only known accused American ISIS foreign fighter to be in custody in Iraq or Syria. He was held for four months without legal representation until the ACLU won the right to represent him.

His case could have implications for hundreds of other accused foreign fighters from Europe and Asia who are in the custody of the Iraqi government or the Syrian Democratic Forces, America’s partners on the ground in Syria.

Doe surrendered in September to the SDF in at a checkpoint on the Syria-Turkey border and was later transferred to U.S. custody in Iraq, where he was interrogated by the military and FBI. U.S. military and FBI officials labeled him an “enemy combatant,” effectively allowing his continued detention despite no charges being filed.

“Syrian Democratic Forces turned over an American citizen who surrendered to SDF on or around Sept. 12 to U.S. forces,” Pentagon spokesperson Major Adrian J.T. Rankine-Galloway told a Defense Post reporter at the time.

“The U.S. citizen is being legally detained by Department of Defense personnel as a known enemy combatant. The individual is being treated humanely in accordance with our regulations.”

Doe’s lawyers say he is not accused of acting against the United States or any other country, and that no charges are pending in Saudi Arabia.

Prisoner or collaborator?

The U.S. government said Doe was carrying USB drives with bomb-making instructions and other ISIS internal documents when he was taken into custody. The ACLU says he was in Syria to report on the conflict and was captured by ISIS. He also tried numerous times to escape, according to his lawyers.

A lengthy profile on Doe published by The New Republic reports that he was twice imprisoned by ISIS – once prompting him to swear an oath of loyalty, and again after he deserted.

According to media reports, Doe was born in the United States to Saudi parents. He has not consented to the transfer, according to court documents.

The New York Times reported on December 20 that Trump administration officials were planning to transfer Doe to Saudi Arabia. The U.S. government had told the court that a delay in transferring Doe to the unnamed third country would “undermine the United States’ credibility with an important foreign partner that has agreed to this request,” as “extensive diplomatic discussions” had already taken place.

In October, the Times reported that the FBI didn’t have enough evidence to prosecute Doe in a U.S. court.

‘Positive legal authority’

The ACLU has pushed for Doe to be tried in a U.S. court or freed. He has not been charged with fighting for ISIS or any other crime during the seven months he has been in custody in Iraq.

“Forcibly rendering him to another country would be an unconscionable violation of his constitutional rights,” Hafetz said on Wednesday.

In a redacted version of the 36-page document filed on Wednesday, the ACLU argued that the Trump administration cannot legally transfer a U.S. citizen to another country without a positive legal authority.

“This case is tied to the broader question about the limits of post-9/11 authorization for the use of military force. How much power does the commander-in-chief wield in the name of counterterrorism?” said Max Abrahms, Assistant Professor of political science at Northeastern University.

The 2001 Congressional Authorization for the Use of Military Force gave the president sweeping power to use “all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided” the 9/11 attacks “in order to prevent any future acts of international terrorism against the United States.”

The AUMF has been cited as justification for U.S. military action since, including against ISIS. The Supreme Court has previously ruled that the AUMF also gives the military authority to detain a citizen captured on the battlefield.

“I’m also concerned more broadly that the President seems to have such wide discretion in policy-making where the counterterrorism justification is arguably secondary to other geopolitical concerns like containing Iran. So this case touches on more fundamental issues about the role of the executive in a post-9/11 terrorism age,” Abrahms said.

The ACLU filing from Wednesday notes that the government has not has pointed to the AUMF as a positive legal authority to transfer Doe.

The court has also already found that “a foreign government’s interest in an American citizens cannot substitute for the positive legal authority required by the Supreme Court and the D.C. Circuit Court of Appeals,” the ACLU argued.

When Chutkan ruled in December that the ACLU could represent the detainee, she said the administration’s position was “disingenuous at best” and “troubling,” as Doe had asked for a lawyer on September 25, less than two weeks into his detention.

Fergus Kelly contributed reporting