A federal judge for the District Court for the District of Columbia ruled on January 23rd that the Department of Defense must give both the court and the ACLU three days’ notice before it seeks to transfer a United States citizen and suspected ISIS fighter into the custody of another nation. The individual that the ACLU is representing is believed to be a dual citizen of the United States and Saudi Arabia and was turned over to American troops after being caught by a Syrian militia last September. He has since been imprisoned in Iraq for more than four months under suspicions of being an enemy combatant with ties to the Islamic State.
The individual in question, who has remained unidentified, asked for a lawyer last month after being informed of the Miranda rights and the American Civil Liberties Union (ACLU) offered to meet with him. Although the Trump administration argued that the ACLU had no connection to the man and therefore no right to represent him, the court ordered them to allow the ACLU “immediate and unmonitored access to [the] Petitioner to determine whether he wanted the ACLUF to pursue… action on his behalf”. The ACLU notified the court on January 5th that the man had agreed to allow them to represent him in a habeas corpus lawsuit challenging his detention.
The point at issue was whether or not the petitioner should be transferred to another country’s custody before the court reached a decision on his petition and, if so, whether or not he should be allowed to contest the transfer. Although the Defense Department did not give any specific details as to whether or not the petitioner would be transferred, they admitted they “may seek to transfer him prior to [the] court’s decision”. The ACLU, on the petitioner’s behalf, requested that the court forbid the government from completing the transfer until a decision is made.
In reviewing the case, the court first determined that the petitioner had shown “a likelihood of success on the merits of his claim”, the claim being that restrictions should be placed on the ability of the Defense Department to transfer him in the middle of litigation. Furthermore, the Defense Department failed to establish that delaying the transfer would disturb relations between the United States and the country in question. However, the court noted that it did not deem it necessary to restrict the transfer altogether, because the Department of Defense had not yet officially announced its intention to transfer the petitioner.
The court ultimately decided that although it could not delay or prevent the transfer itself, it would be prudent to compel the Defense Department to notify both the court and the petitioner’s counsel at least three days prior to the scheduled transfer, in order to give the petitioner time to contest it should he so desire. As the New York Times noted, this case is significant because it introduces important implications into the rights of American citizens and the extent of power wielded by the government in cases related to national security. As Jonathan Hafetz, the ACLU attorney representing the petitioner, stated after the court’s decision was made: “‘this ruling helps to ensure that this citizen’s rights are respected and that he will receive due process in an American court.’”