Appeals court prohibits Trump administration from transferring ‘enemy combatant’ overseas

May 10, 2018

The U.S. cannot send an American citizen being held as an enemy combatant, who the government says was caught fighting for the Islamic State, from Iraq to a third country against his will, a federal appeals court ruled this week.

The government could bring him to the U.S., but it cannot transfer him to a third country, a three-judge panel for the Circuit Court of Appeals for the District of Columbia said in an opinion released Wednesday.

“We cannot conclude that the government possesses that kind of authority over a U.S. citizen, at least without a statute or treaty specifically providing for it,” Judge Sri Srinivasan wrote for the majority in the 2-1 ruling.

The case appears to test new territory in long-running legal battles over enemy combatants snared in the war on terror.

In this case, a man with dual U.S. and Saudi citizenship, referred to as “John Doe” in court documents, traveled to Syria and was captured fighting on behalf of the Islamic State, also known as ISIS or ISIL. The U.S. government has determined Mr. Doe is an enemy combatant and wishes to transfer him to an a foreign country for prosecution.

But Mr. Doe, represented by the American Civil Liberties Union, claims he is not an ISIS combatant. He also challenges the U.S. government’s authority to fight the war against ISIS, arguing it stretches the 2001 Authorization for the Use of Military Force that approved the fight against Al Qaeda, the Taliban in Afghanistan, and related terrorist organizations.

The appeals court did not reach those big questions yet.

Instead, the fight was over whether, even before those issues are decided, the U.S. could ship the detainee from Iraq to an unnamed third country that is also seeking custody which would, effectively, end the other claims.

A lower district court had ruled that any transfer must be run by the court first. When the government did notify Judge Tanya Chutkan of the transfer, the Obama appointee then blocked it, saying the government didn’t have the legal authority.

Judge Srinivasan, an Obama appointee, joined by Judge Robert L. Wilkins, another Obama appointee, agreed with Judge Chutkan.

Judge Karen LeCraft Henderson dissented from the opinion, saying the courts were going well beyond the power judges should exercise over battlefield captives.

“It disrupts military operations and sovereign-to-sovereign relations half a world away,” said Judge Henderson, who was appointed by President George H.W. Bush.

The federal government said it’s reviewing the decision and considering its next steps.

“The safety and security of all Americans is a top priority for this administration. This individual’s alleged activities with ISIL implicate numerous national security, law enforcement, international relations and foreign policy concerns. Both domestic and international law confer on the U.S. military broad discretion over battlefield operations, including the transfer of individuals captured on overseas battlefields,” said Kerri Kupec, a spokesperson for the solicitor general’s office.