DC Circuit Appeals Court Rules that U.S. Government Cannot Forcibly Transfer U.S. ISIS Suspect

On May 7, 2018, the United States Court of Appeals for the District of Columbia Circuit ruled that the United States cannot forcibly transfer an American ISIS suspect being held in Iraq to another country without first proving that he is an enemy combatant. The decision has significant implications for wartime presidential power, as well as for individual citizenship rights. The case is Doe v. Mattis.

The suspect, a “John Doe,” is a U.S. and Saudi Arabian dual citizen currently in the custody of the U.S. military in Iraq. The U.S. government argues that it has the authority to forcibly transfer Doe to another country and relies on two lines of reasoning to support that claim. In the first line of reasoning, the government marshals Supreme Court precedent from Munaf v. Green and Wilson v. Girard to suggest that, once a citizen leaves U.S. territory, the Executive can forcibly transfer him to any country that possesses a “legitimate sovereign interest” in him. In the second line of reasoning, the government notes that executive power generally expands during time of war, and thus the executive is afforded greater discretion in the war-time prosecution of enemy combatants.

While the D.C. Circuit acknowledges that the Executive is afforded broader deference in war-time prosecution, it notes that Doe’s status as an American citizen complicates matters. The D.C. Circuit’s opinion relies primarily on the Supreme Court ruling in Hamdi v. Rumsfeld (2004). In Hamdi, the Supreme Court ruled that, before the Executive can forcibly transfer a U.S. citizen as an enemy combatant, it must give him the opportunity to contest the government’s assertion that he is an enemy combatant before a neutral arbiter. “The Hamdi Court believed it ‘unlikely’ that its decision would have a “dire impact on the central functions of warmaking.” 542 U.S. at 534. At the same time, the Court thought it ‘vital’ that it ‘not give short shrift to the values that this country holds dear or to the privilege that is American citizenship,’” the D.C. circuit’s opinion reads. “We follow the Court’s guidance today.”

See the opinion below.