In mid-September 2017, U.S. military forces in Iraq detained a U.S. citizen and designated him as an “enemy combatant.” In October, after approximately three weeks during which the U.S. military did not disclose publicly his name or the place of his detention, and did not provided him with access to a court or to counsel, and after the Secretary of Defense and Attorney General ignored our letter to them expressing concern over this detention of a U.S. citizen without charge or counsel, the ACLU and ACLU-DC filed a habeas petition claiming violations of the Non-Detention Act (prohibiting the detention of a U.S. citizen except pursuant to an Act of Congress) and the U.S. Constitution (guaranteeing, among other things, the rights to counsel and due process). The habeas petition sought a court order permitting ACLU attorneys to meet with the “John Doe” detainee, forbidding interrogation of the detainee until the habeas petition is resolved, and requiring that the detainee be charged with a crime in regular federal court or released.
In January 2018, the Court issued an order that the government had to provide 72-hour notice before transferring John Doe to a different country. Three months later, the government attempted to transfer John Doe to Country X (the name of which was redacted for security reasons), and we immediately challenged the transfer. In April 2018, the court blocked the transfer, a decision that we applauded and the government appealed. In May 2018, the U.S. Court of Appeals for the D.C. Circuit agreed that the government did not have legal authority to involuntarily transfer a U.S. citizen to another country without judicial review.
In June, the government notified us that it intended to release Doe in Syria. We immediately challenged that release into an area that the government itself has described as ‘exceedingly dangerous.’ The parties agreed that they wanted more time to brief the issues and the government agreed not to transfer Doe while briefing continued.
The court heard argument in July 2018, but the parties asked the court to withhold a decision while they sought to achieve a negotiated settlement. After extensive negotiations, the government finally released our client, with his consent, in another country in late October 2018. The country’s name has not been released to protect his privacy. While the court never addressed the question of whether our client’s detention was legal, this case still established important precedent in that the government cannot transfer American citizens to a different country without due process or their consent.
For more details about this case including what it might mean for Americans detained abroad, check out the blog post written by Jonathan Hafetz, one of the attorneys who argued this case in court.