Trump appeals decision blocking transfer of combatant John Doe

The Trump administration on Friday appealed an order from a federal judge blocking it from transferring a U.S. citizen held in military custody to Saudi Arabia, protracting the legal fight over the fate of a man known only as John Doe.

Doe was captured by Syrian forces in mid-September as a suspected Islamic State in Iraq and Syria (ISIS) fighter and transferred to U.S. military custody in Iraq, where he has remained since.

{mosads}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 (ACLU), which is representing Doe, argues that forcibly transferring him to foreign custody would trample on his rights as an American citizen.

On Thursday night, a federal judge agreed to block the transfer.

The government is also appealing a previous order from the same judge, U.S. District Court Judge Tanya Chutkan, requiring the government to provide the detainee with 72 hours notice if it intended to transfer him.

The appeals court has heard oral arguments in that case but has not issued a ruling. Because the two appeals address largely the same legal questions, analysts expect that they will now be consolidated.

The administration provided noticed of Doe’s transfer on Monday night, with Chutkan issuing her ruling blocking the move Thursday night, just minutes before the 72-hour clock was set to run out.

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

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.”

The ACLU has argued that the government must show a positive legal authority — like a treaty or statute — to transfer Doe. An agreement with a partner with a “legitimate interest” in Doe is not sufficient, the lead attorney on the case said in court Thursday.

“When it comes to a citizen, it’s not, ‘let’s make a deal,’” Jonathan Hafetz, a senior staff attorney at ACLU, said.