Judge blocks Trump administration from transferring unnamed enemy combatant

A federal judge on Thursday blocked the Trump administration from transferring a U.S. citizen held as an enemy combatant to Saudi Arabia, in an under-the-wire decision that came just minutes before the government would have had the authority to move the prisoner against his will.

The ruling is the latest twist in a dramatic case that has reignited debate in an extremely unsettled area of U.S. law: how to handle U.S. citizens suspected of fighting with the Islamic State in Iraq and Syria (ISIS) who are captured in active combat zones.

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Because of a previous ruling from the same judge, U.S. District Court Judge Tanya Chutkan, the government was required to provide the detainee with 72 hours notice if it intended to transfer him.

The administration noticed the transfer on Monday night and the 72 hours was set to run out at 8:00 p.m. on Thursday.

The government is expected to appeal the decision. It is already challenging Chutkan’s previous ruling and if it appeals this decision, legal analysts say the two cases will likely be consolidated, thanks to the similarities of the legal debate.

Chutkan’s brief, one-page order does not provide a rationale, but states that the court will provide a redacted version of her opinion after consultation with the two parties.

The detainee, known only as John Doe, was captured by Syrian forces in mid-September and transferred to U.S. military custody in Iraq, where he has remained since.

There is no exact legal precedent for his case and the Trump administration has struggled with how to handle him. It reportedly lacks sufficient evidence to charge him in federal court as it has done with other U.S. citizens captured working for ISIS — but for security reasons, it is loath to simply release him.

The government recently struck a deal with a third country — confirmed to The Hill by a U.S. official to be Saudi Arabia, where Doe also holds citizenship — to take Doe off of the U.S.’s hands.

But the American Civil Liberties Union, which is representing Doe, argued in court Thursday morning that forcibly transferring him to foreign custody would trample on his rights as an American citizen — a position Chutkan appeared to endorse.

“It may be in the U.S. interest to transfer him … but that does not necessarily overcome John Doe’s legal rights as a citizen,” she said in court.

Doe is challenging his status as an enemy combatant, arguing that the government must either charge him with a crime or release him. He has claimed to have traveled to Syria in order to report on the conflict there and said that he was kidnapped by ISIS. The U.S. government says that he joined the terror group.

Both issues — whether the government can transfer Doe and whether Doe is being lawfully held as an enemy combatant — hinge on his right to habeas corpus, which requires the government to provide a legal basis for detention.

The government argued Thursday that transferring Doe to another country constitutes relief under habeas, because he will be released from U.S. custody. It claims that it has the authority to transfer Doe, as a battlefield capture, to the custody of another country with a “legitimate sovereign interest” in him—in other words, to a regional partner in the fight against ISIS.

Saudi Arabia, which was not named in court, “would initially take him into custody and then it would be completely up to them” what to do with him, Justice Department lawyer James Burnham said in court Thursday. “Custody could be one day or 10 years and that’s completely up to them.”

Chutkan on Thursday characterized that rationale as an “end-run” around habeas corpus, seen as a bedrock right.

“You’re asking me to step aside and end his rights and his challenge to detention” based solely on the concern that halting the transfer would be a ding on diplomatic relations between the two nations, Chutkan said Thursday. “I don’t see the rush.”

She noted that the government had disclosed that Saudi Arabia had agreed to take Doe in full knowledge of the fact that court proceedings might delay the transfer.

Chutkan, in her bare-bones ruling Thursday, addressed only the issue of Doe’s transfer — not the lawfulness of his detention, which remains an open question.

But it is that question that could reshape the delicate legal framework that both the Trump and Obama administrations have used to frame the war on ISIS.

In order to classify a person as an enemy combatant, the government must be able to prove that the detainee is a fighter for an enemy force with whom the U.S. is in a state of armed conflict. Both administrations have claimed that ISIS is an “associated force” covered by the military authorization that Congress passed in 2001, after the 9/11 attacks.

But the courts have not yet weighed in on that rationale, and both conservative and liberal legal analysts say the government is on risky legal footing if challenged.

Hinting at a tense awareness of that risk within government, the Justice Department has carefully avoided basing any of its legal arguments on the authorization for use of military force (AUMF).

The issue has sparked a perennial debate on Capitol Hill, although lawmakers have so far failed to coalesce around a single piece of legislation.

Most recently, Senate Foreign Relations Committee Chairman Bob Corker (R-Tenn.) on Monday introduced legislation updating the AUMF that would resolve the discrepancy, but its prospects are seen as dim on Capitol Hill.