18 Jan 2018 |KATIE BO WILLIAMS | The Hill
“A federal judge on Thursday barred the U.S. government from transferring a U.S.-Saudi citizen currently held in military detention in Iraq to another country, with that restriction in place until Jan. 23.
The decision came as part of an ongoing legal bid by the unnamed citizen to contest the basis of his four-month detention. Known only as John Doe to the public, he was captured by Syrian forces while fighting for ISIS and turned over to U.S. forces in mid-September.
Little is known about Doe, including what the government intends to do with him. The administration has reportedly weighed trying to transfer him to Saudi custody — something the American Civil Liberties Union (ACLU), which is representing Doe, has pushed back on in court.
In a hearing on Thursday, government lawyers argued that transferring Doe to another country with “a significant interest” in him would constitute the relief that Doe is seeking under habeas corpus, the law that allows prisoners to challenge an unlawful detention.
But U.S. District Judge Tanya Chutkan did not appear persuaded by that argument, calling it a “very literal reading of release” and suggesting that it would allow the government to do an “end run” around the law by simply transferring a citizen.
Justice Department lawyer James Burnham claimed that any injunction against transferring Doe to another country would be detrimental to “our international relations,” citing the broader fight against ISIS.
Chutkan has ordered the government to file a classified declaration providing more specifics on its rationale by close of business on Thursday.
The hearing revealed few other details about Doe. Burnham told Chutkan that “to my knowledge,” Doe is not facing criminal charges in another country, as other transferred individuals have in the past.
The government confirmed that Doe held a second citizenship in Saudi Arabia, as first reported by The Hill, but declined to say officially whether it is considering a transfer to Riyadh.
Doe’s case has stymied the Trump administration, which reportedly does not believe it has enough evidence to try him in criminal court but doesn’t want to simply release him.
The ACLU, which under Chutkan’s orders has been permitted to speak with Doe twice now, is seeking his full release from custody. It is urging Chutkan to maintain the moratorium on his transfer until the conclusion of the case.
Chutkan’s ruling Thursday is a stopgap until she decides whether she should grant the ACLU’s request. During the hearing, she expressed some discomfort with wading into “the granular level of deciding who goes where,” citing a traditional deference by the courts to national security matters.
“I am cautioned by the Supreme Court reminded that we should only do so in extreme circumstances,” she said.