John Doe v. James Mattis [REISSUED OPINION] ( 2019 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 5, 2018 Decided May 7, 2018
Reargued April 27, 2018 Reissued June 28, 2019
No. 18-5032
JOHN DOE,
APPELLEE
v.
JAMES MATTIS, IN HIS OFFICIAL CAPACITY AS SECRETARY OF
DEFENSE,
APPELLANT
Consolidated with 18-5110
Appeal from the United States District Court
for the District of Columbia
(No. 1:17-cv-02069)
James M. Burnham, Attorney, U.S. Department of Justice,
argued the cause for appellant. With him on the briefs were
Jessie K. Liu, U.S. Attorney, Matthew M. Collette and Sonia
M. Carson, Attorneys. Catherine H. Dorsey, Attorney, entered
an appearance.
Jonathan L. Hafetz argued the cause for appellee. With
him on the briefs were Arthur B. Spitzer and Hina Shamsi.
2
Before: HENDERSON, SRINIVASAN, and WILKINS, Circuit
Judges.
Opinion for the Court filed by Circuit Judge SRINIVASAN,
with whom Circuit Judge WILKINS joins.
Dissenting opinion filed by Circuit Judge HENDERSON.
SRINIVASAN, Circuit Judge: This case involves a United
States citizen who has been detained by the United States
military in Iraq for several months. He seeks release from
military custody in a habeas corpus action brought under the
pseudonym John Doe. Doe is a citizen not only of the United
States but also of Saudi Arabia.
Doe was initially captured in Syrian territory controlled by
the Islamic State of Iraq and the Levant (ISIL). The
Department of Defense determined that he is an enemy
combatant for ISIL, and the Department has been detaining him
at a military facility in Iraq. Doe’s habeas petition contends
that he must be released because, he claims, ISIL combatants
do not come within any existing authorization for use of
military force. He also contends that he is not in fact an ISIL
combatant. At this stage of the proceedings, no court has
addressed the merits of those claims.
This appeal instead concerns a separate claim by Doe: that
the government, while his habeas petition remains pending,
cannot forcibly—and irrevocably—transfer him to the custody
of another country. Transfer of Doe to another country’s
custody would, naturally, obviate any occasion to seek release
from physical custody at the hands of the United States. In
connection with the possibility of Doe’s forcible transfer to the
custody of another country, the district court has entered two
orders we now review.
3
In the first order, the court required the government to give
72 hours’ notice before transferring Doe to the custody of any
other country. The notice period was meant to afford the court
an opportunity to review the circumstances of a planned
transfer before it takes place. The government seeks to set
aside any obligation to give advance notice with regard to two
specific countries. We will refer to those countries as Country
A and Country B because of the government’s desire to
withhold public release of their identities due to apparent
sensitivities associated with ongoing or future diplomatic
discussions.
The district court’s second order came about after the
government reached an agreement with Country B to transfer
Doe to its custody. The government gave the district court the
requisite notice of its intent to transfer Doe to that country. The
court then enjoined the government from effecting the transfer.
In the court’s view, the government had failed to demonstrate
the necessary legal authority (specifically, a statute or treaty)
for the transfer.
We sustain both of the district court’s orders. In claiming
the authority to forcibly transfer an American citizen held
abroad to the custody of another country, the government
ultimately relies on two species of argument. Neither, in our
view, gives the government the power to effect its desired
handover of Doe to Country B, at least as things currently
stand.
The first rationale advanced by the government has no
necessary grounding in Doe’s designation as an enemy
combatant or in the military’s authority under the law of war.
Rather, the government relies on Supreme Court decisions
recognizing that, when a foreign country wants to prosecute an
American citizen already present in its territory for a crime
4
committed within its borders, the Executive can relinquish her
to that country’s custody for purposes of criminal proceedings.
See Munaf v. Geren, 553 U.S. 674 (2008); Wilson v. Girard,
354 U.S. 524 (1957). Those decisions, on the government’s
reading, extend past their facts in two ways: (i) they enable a
forcible transfer of a U.S. citizen to a different foreign country
than the one in which she is already present, and (ii) they enable
a forcible transfer as long as the receiving country has some
legitimate sovereign interest in her (whether or not related to
criminal prosecution). No. 18-5032, Gov’t Opening Br. 23-25.
We cannot accept the government’s argument. We know
of no instance—in the history of the United States—in which
the government has taken an American citizen found in one
foreign country and forcibly transferred her to the custody of
another foreign country. Under the logic of the government’s
position, it could pick up an American traveling in Europe and
involuntarily relinquish her to, say, the custody of Afghanistan,
as long as Afghanistan is thought to have some cognizable
sovereign interest in her. 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.
The government’s second line of argument differs from its
first in an important respect: the second argument turns on
Doe’s status as an alleged enemy combatant and on the
military’s attendant authority in a time of war. We agree with
the government that, if Doe is an enemy combatant, the military
can transfer him to the custody of Country B, a partner in the
campaign against ISIL. But under the precedents of the
Supreme Court and our court, two conditions must exist for an
American citizen to be subject to military transfer or detention
as an enemy combatant: (i) there must be legal authority for
the Executive to wage war against the enemy, and (ii) there
must be an opportunity for the citizen to contest the factual
5
determination that he is an enemy combatant fighting on behalf
of that enemy. See Hamdi v. Rumsfeld, 542 U.S. 507, 517, 533
(2004) (plurality opinion); Omar v. McHugh, 646 F.3d 13, 24
(D.C. Cir. 2011). Neither the legal inquiry nor the factual
inquiry has taken place in this case. In the absence of those
inquiries, we see no basis to set aside the district court’s
injunction barring the forcible transfer of Doe to Country B.
What about the district court’s order requiring the
government to give 72 hours’ notice before transferring Doe to
either Country A or Country B? Because the government gave
notice of the proposed transfer to Country B, the government’s
appeal of the notice order as it applies to Country B is now
moot. With regard to Country A, the government has yet to
come forward with any information about the circumstances of
a prospective transfer to that country, including the specific
purpose or interest that will give rise to the transfer. The
government instead seeks ex-ante, carte-blanche authorization
to transfer Doe to Country A, regardless of the particular
circumstances or reasons, and without any opportunity for
judicial review. We conclude that the district court did not err
in denying the government that sort of blanket preapproval.
While we sustain the district court’s orders, we do so
respectful of—and with appreciation for—the considerable
deference owed to the Executive’s judgments in the
prosecution of a war. That latitude of course extends to
military decisions about what to do with enemy combatants
captured overseas in a zone of active hostilities. Virtually all
such decisions will be unaffected by our decision today.
But when an alleged enemy combatant—even one seized
on a foreign battlefield—is an American citizen, things are
different. See Hamdi, 542 U.S. at 532-33, 535-37 (plurality);
id. at 558-59 (Scalia, J., dissenting). In that “surely . . . rare”
6
circumstance, id. at 571 n.3 (Scalia, J., dissenting), the
Executive’s authority to wage war as it sees fit is cabined by
the Supreme Court’s decision in Hamdi, which requires that a
citizen be afforded certain guarantees before the military
detains or transfers him under the law of war. Id. at 517, 533
(plurality); Omar, 646 F.3d at 24. That precedent, in our view,
governs the disposition of this appeal.
I.
A.
In September 2017, Syrian Democratic Forces
encountered Doe at a screening point on an active battlefield in
Syrian territory controlled by ISIL. Doe surrendered, informed
the Syrian Democratic Forces that he was an American citizen,
and asked to speak to U.S. officials. The Syrian Democratic
Forces transferred Doe to the custody of U.S. military forces in
the region. The military reached a preliminary determination
that Doe is an enemy combatant, and has detained him at a U.S.
facility in Iraq for the past seven months.
The military’s preliminary determination that Doe is an
enemy combatant is based on evidence that he is a member or
substantial supporter of ISIL. The evidence against Doe
includes the following: the circumstances of his surrender, his
statements upon surrender and during detention, and records of
his ISIL membership.
ISIL, also known as the Islamic State of Iraq and Syria
(ISIS), has been designated as a terrorist group. It controls
territory in Iraq and Syria, and has perpetrated and aided
terrorism there and around the world, killing several thousand
civilians, including American aid workers and journalists. See
U.S. Dep’t of State, Bureau of Counterterrorism, Country
7
Reports on Terrorism 2016: Chapter 6, Terrorist
Organizations (July 2017). Since September 2014, the United
States has pursued a counterterrorism strategy against ISIL,
and is an active member of a 75-country coalition working to
defeat ISIL in Iraq and Syria.
B.
In October 2017, the American Civil Liberties Union
Foundation, acting on Doe’s behalf, petitioned the district court
for a writ of habeas corpus. The petition asserts that the
military’s existing authority to engage in armed conflict does
not extend to ISIL, that the military thus lacks legal authority
to detain an alleged member of ISIL, and that, as a result, the
government must either prosecute Doe in an Article III court or
release him. In addition to those legal arguments, Doe
contends as a factual matter that he is not an ISIL combatant.
The district court determined that the ACLU had standing
to bring the action on Doe’s behalf. The court ordered the
government to give the ACLU access to Doe to ascertain
whether he wanted to continue the action. Am. Civil Liberties
Union Found. v. Mattis, 286 F. Supp. 3d 53, 60-61 (D.D.C.
Dec. 23, 2017). On January 5, 2018, the ACLU informed the
court that Doe wanted to continue pursuing the habeas petition
with the ACLU representing him. The ACLU then asked for
an order barring the government from transferring Doe to
another country until the court decided the merits of his
petition.
On January 23, the district court granted Doe’s request in
part. The court entered a preliminary injunction requiring the
government to provide 72 hours’ notice before transferring Doe
to any other country.
8
The court determined that Doe had proven a likelihood of
success because the government had failed to demonstrate that
it had the requisite legal authority to transfer him to another
country. The court further concluded that Doe had shown
irreparable injury, reasoning that transfer out of U.S. custody
would render him “unable to pursue his habeas petition.” Doe
v. Mattis, 288 F. Supp. 3d 195, 200 (D.D.C. Jan. 23, 2018).
Finally, the court weighed the government’s interest in
maintaining productive diplomatic relations with potential
transferee countries against a U.S. citizen’s right to contest the
lawfulness of his detention, concluding that both the balance of
equities and the public interest favored Doe. Finding the
requirements for a preliminary injunction to have been met, the
court entered its order requiring 72 hours’ notice so that Doe
would have an opportunity to challenge a proposed transfer
before it happened.
The government appealed. It initially asked this court to
vacate the preliminary injunction so that it could transfer Doe
to any country without providing advance notice. No. 18-5032,
Gov’t Opening Br. 27-28. In the alternative, the government
asked for vacatur of the notice requirement as applied to one
specified country “or any other country that the Executive
Branch determines has a legitimate interest in petitioner.” Id.
at 38. Later, in its reply brief, the government narrowed the
scope of its appeal still further, such that it now seeks vacatur
of the notice requirement only as applied to Countries A or B.
No. 18-5032, Gov’t Reply Br. 2 n.1.
On April 16, 2018, while the government’s appeal of the
notice injunction was pending, the government filed a notice in
the district court in compliance with that injunction. The notice
communicated the government’s intent to transfer Doe to the
custody of Country B in 72 hours. Attached to the notice was
a sworn declaration from a Deputy Assistant Secretary of State,
9
who averred that Country B had expressed a “strong interest”
in taking custody of Doe and continuing to detain him in some
form. Doe v. Mattis, No. 17-cv-2069, Notice attach. 1 at 4-5
(D.D.C. Apr. 17, 2018), ECF No. 80. Doe moved for a
preliminary injunction or temporary restraining order to block
the proposed transfer.
On April 19, 2018, the district court granted the
preliminary injunction, barring the government “from
transferring [Doe] from U.S. custody.” Doe v. Mattis, No. 17-
cv-2069, Prelim. Inj. (D.D.C. Apr. 19, 2018), ECF No. 88.
While the order could be read to bar transfer to any foreign
country, we understand it to grant only the relief Doe requested
(and thus only the relief the government had notice might be
imposed)—that is, a bar on transfer to Country B specifically.
Cf. Capital City Gas Co. v. Phillips Petrol. Co., 373 F.2d 128,
131 (2d Cir. 1967). In support of the order, the court again
concluded that Doe had demonstrated a likelihood of success
on the merits because the government had failed to identify the
requisite legal authority for a forcible transfer of Doe to
Country B. And for the same reasons it gave when it entered
the notice injunction, the court concluded that Doe would be
irreparably injured absent an injunction and that the balance of
equities and public interest weighed in his favor.
The government appealed the second injunction to this
court. It then moved for consolidation of the two appeals and
expedited treatment, both of which we granted. This opinion
thus resolves both of the government’s appeals. In view of the
presumption of public access to judicial proceedings, we have
endeavored to fashion the opinion so as to manage redactions
while still not revealing the identities of Countries A and B.
10
II.
The government appeals two orders granting injunctive
relief to Doe: the order requiring the government to give 72
hours’ notice before transferring Doe to Country A or B (the
only countries as to which the government appeals the notice
obligation); and the order prohibiting the government from
transferring Doe to Country B. While both orders are
denominated preliminary injunctions, the latter appears to
function as a permanent injunction.
A district court facing a request for a preliminary
injunction must balance four factors: (i) whether the party
seeking the injunction is likely to succeed on the merits of the
action, (ii) whether the party is likely to suffer irreparable harm
without an injunction, (iii) whether the balance of equities tips
in the party’s favor, and (iv) whether an injunction would serve
the public interest. Winter v. Nat. Res. Def. Council, Inc., 555
U.S. 7, 20 (2008). The same factors apply when a party seeks
a permanent injunction, except the party must show “actual
success” on the merits rather than just a likelihood. Id. at 32.
We review the district court’s balancing of those considerations
for an abuse of discretion, but review any underlying legal
conclusions de novo. Abdullah v. Obama, 753 F.3d 193,
197-98 (D.C. Cir. 2014).
A.
We first consider the order enjoining the Secretary from
transferring Doe to Country B. We address each of the
injunction factors in order.
11
1.
In assessing whether Doe has succeeded on the merits, the
relevant question is whether, in the circumstances of this case,
involuntarily transferring Doe to Country B would be unlawful.
We hold that it would be.
The government makes two species of arguments as to
why the Executive has the power to transfer Doe to Country B
without his consent. The first rationale has no necessary
connection to Doe’s designation as an enemy combatant, or
even to the wartime context of this case. It instead relies on a
general understanding that, when a foreign country wants to
prosecute an American citizen already in its territory for a
crime committed within its borders, the Executive can
relinquish him to that country’s custody for criminal
proceedings. The government’s second rationale, unlike the
first, hinges on Doe’s status as an enemy combatant. That
second strand of the argument relies on the military’s asserted
authority under the law of war to transfer an enemy combatant
(including an American citizen) to an allied country in the
conflict.
Neither of the government’s rationales, we conclude,
supports the involuntary transfer of Doe to Country B, at least
as things currently stand. In reaching that conclusion, we rely
on the same undisputed facts as our dissenting colleague: that
Doe is an American citizen, that he is in U.S. custody in Iraq,
that the government believes he is an ISIL combatant, and that
he objects to the government’s forcible transfer of him to the
custody of Country B. Dissent, at 3-4, 27. While our colleague
would conclude that the Executive can forcibly transfer Doe to
Country B in those circumstances, we respectfully disagree for
the reasons explained in this opinion.
12
a.
A fundamental attribute of United States citizenship is a
“right to . . . remain in this country” and “to return” after
leaving. Mandoli v. Acheson, 344 U.S. 133, 139 (1952). That
right is implicated when the government seeks to forcibly
transfer an American citizen from the United States to a foreign
country. To effect such a transfer, the government must both
(i) demonstrate that a treaty or statute authorizes the transfer,
and (ii) give the citizen an opportunity to challenge the factual
basis for the transfer. Valentine v. United States ex rel.
Neidecker, 299 U.S. 5, 9 (1936); Collins v. Loisel, 259 U.S.
309, 316-17 (1922).
The government’s first argument in this case, though, is
that a citizen loses both of those protections the instant he
leaves U.S. territory. When a citizen sets foot outside the
United States, the government says, the Executive can forcibly
transfer him to the custody of any country having a “legitimate
sovereign interest” in him. The transfer, the government
emphasizes, would be “total.” No. 18-5110, Gov’t Second
Supp. Br. 8. Following the citizen’s transfer, then, he would
be fully—and irrevocably—subject to the power of the foreign
sovereign now holding him.
i. The government’s contention that it possesses that kind
of transfer authority over an American citizen is centrally
predicated on Munaf v. Geren, 553 U.S. 674, which is itself
predicated on Wilson v. Girard, 354 U.S. 524. We disagree
with the government’s understanding of those decisions.
In Wilson, William Girard, a U.S. soldier stationed in
Japan, was accused by Japan of committing a homicide in its
territory. 354 U.S. at 525-26. The Army agreed to relinquish
Girard to Japanese custody for pretrial detention. Id. at 526.
 13
Girard filed a habeas petition, and the district court issued a
preliminary injunction prohibiting the transfer. Id. The
Supreme Court vacated the order and allowed the handover of
Girard to Japanese custody.
The Court began by recognizing that, as a general matter,
a “sovereign nation has exclusive jurisdiction to punish
offenses against its laws committed within its borders.” Id. at
529. Japan had voluntarily surrendered that prerogative in a
security agreement with the United States that governed the
treatment of U.S. soldiers stationed in Japan. But the
agreement permitted the United States to cede back to Japan
the authority to prosecute a service member in a given instance.
Id. at 527-29. In Girard’s case, the United States had done just
that. Id. at 529. So the question, the Court said, was whether
there was any “constitutional or statutory barrier” to the
Executive (i) waiving the United States’s jurisdiction and (ii)
transferring Girard to Japan to face criminal prosecution. Id. at
530. Finding no such barrier, the Court sanctioned Girard’s
transfer to Japanese custody. Id.
In Munaf, the Court again applied the principle recognized
in Wilson—i.e., that, when a foreign country wishes to
prosecute an American citizen who is within its borders for a
crime he committed while there, the Executive can relinquish
him to the country’s custody. Munaf involved two American
citizens who voluntarily traveled to Iraq and allegedly
committed crimes while there. 553 U.S. at 679. A
multinational military coalition identified the two citizens as
security risks, and they were held by U.S. military forces in Iraq
“[p]ending their criminal prosecution for those offenses” in
Iraqi courts. Id. at 705; see id. at 681, 683. Both of the citizens
filed habeas petitions, asserting (i) that the Executive lacked
the power to transfer them to Iraq’s custody for criminal
proceedings, and (ii) that transferring them thus would violate
14
the Due Process Clause. Id. at 692. The Court rejected their
arguments and allowed the military to relinquish them to Iraqi
custody. Id. at 705.
Relying on Wilson, the Court emphasized that a country
has a “sovereign right to ‘punish offenses against its laws
committed within its borders.’” Id. at 692 (quoting Wilson, 354
U.S. at 529). That sovereign entitlement, the Court observed,
was one that the Court had long and repeatedly recognized. Id.
at 694-95 (citing, e.g., Schooner Exchange v, McFaddon, 11
U.S. (7 Cranch) 116 (1812); Neely v. Henkel, 180 U.S. 109
(1901); Kinsella v. Krueger, 351 U.S. 470 (1956)). An order
prohibiting the Executive from transferring the two petitioners
to Iraqi authorities would infringe that time-honored right. 553
U.S. at 697-98. The Executive thus could transfer the
petitioners to Iraqi custody without violating the Due Process
Clause. Id. at 699-70.
In both Munaf and Wilson, the authority of the Executive
to transfer U.S. citizens had no roots in any military authority
over enemy combatants under the law of war. Wilson, after all,
concerned “the peacetime actions of a [U.S.] serviceman,” not
the wartime actions of an enemy combatant. Id. at 699. In
Munaf, meanwhile, it is true that the alleged crimes involved
insurgent acts committed in a time of war, for which both
suspects had been designated “security internees” and one had
been deemed an enemy combatant. See id. at 681-84, 705. But
the Court’s recognition of the Executive’s power to transfer the
two men did not depend on those designations or on the nature
of the alleged crimes. That is evident from the Court’s heavy
reliance on Wilson, a case having nothing to do with military
authority in wartime.
In accordance with that understanding, the Court in Munaf
observed that “[t]hose who commit crimes within a sovereign’s
15
territory may be transferred to that sovereign’s government for
prosecution” even if the “crime at issue” is an inherently non-
war offense like “embezzlement.” Id. at 699-700 (discussing
Neely v. Henkel, 180 U.S. 109 (1901)). To be sure, “there is
hardly an exception to that rule when the crime” is “unlawful
insurgency directed against an ally during ongoing hostilities.”
Id. at 700. So while the war-related context in which the crimes
arose in Munaf was not a necessary condition for the Executive
to possess the transfer authority recognized in Wilson, that
context of course did not diminish the Executive’s authority.
ii. In holding that the Executive had the power to transfer
the Munaf petitioners, the Court distinguished its previous
decision in Valentine v. United States ex rel. Neidecker, 299
U.S. 5. Because Doe chiefly relies on Valentine in arguing that
the military lacks authority to transfer him to Country B,
whereas the government centrally relies on Munaf in arguing
the opposite, the Munaf Court’s treatment of Valentine
warrants our careful examination.
In Valentine, three American citizens fled to New York
City after being accused by France of committing crimes
within its territory. Id. at 6. France requested the citizens’
extradition, and U.S. officials arrested the three men. Id. The
men then filed habeas petitions, arguing that, because the
extradition treaty between the United States and France
contained no obligation for either country to hand over its own
citizens, the Executive lacked the power to extradite them. Id.
The Court agreed, holding that the power to extradite “is not
confided to the Executive in the absence of treaty or legislative
provision.” Id. at 8. Valentine thus establishes that the
Executive’s power to extradite a citizen from the United States
to another country must come from a treaty or statute. Id. at 9;
see Munaf, 553 U.S. at 704.
16
Relying on Valentine, Doe contends that the Executive
cannot transfer him from U.S. custody to another country’s
custody unless the transfer is authorized by a treaty or statute.
The petitioners in Munaf made the same argument in resisting
their transfer to Iraqi custody. Munaf, 553 U.S. at 704. The
Court, though, found Valentine “readily distinguishable.” Id.
It explained that Valentine “involved the extradition of an
individual from the United States.” Id. The Munaf petitioners,
by contrast, had “voluntarily traveled to Iraq and [were] being
held there.” Id. They were therefore “subject to the territorial
jurisdiction of that sovereign, not of the United States.” Id.
The Court, for that reason, denied the contention that the
Executive invariably “lacks the discretion to transfer a citizen
absent a treaty or statute.” Id. at 705. Wilson, the Court said,
“forecloses” that contention. Id. That is because the only
conceivable authority in Wilson was the security agreement
governing the treatment of U.S. service-members in Japan—
which, while authorized by a treaty, was not itself a treaty or
statute. Id. “Nevertheless,” the Munaf Court observed, “in
light of the background principle that Japan had a sovereign
interest in prosecuting crimes committed within its borders,”
the Wilson Court had “found no ‘constitutional or statutory’
impediment to the United States’s waiver of its jurisdiction”
over Girard and its ensuing transfer of him to Japanese custody.
Id.
iii. Because Munaf and Wilson recognized the Executive’s
authority to transfer American citizens to foreign custody
without having to satisfy Valentine’s treaty-or-statute rule, it is
apparent that the Executive need not invariably meet the
Valentine test to effect a forcible transfer. So some transfers of
American citizens to foreign custody are governed by
Valentine; others are not. Into which of those camps does the
proposed transfer of Doe to Country B fall?
17
In arguing that it can forcibly transfer Doe, the government
reads Valentine, Munaf, and Wilson to yield the following set
of rules. Under Valentine, an American citizen in the United
States cannot be forcibly transferred to a foreign country absent
a statute or treaty (such as an extradition treaty) authorizing the
transfer. But under Munaf and Wilson, the government says,
once a citizen voluntarily leaves the United States, the
Executive can pick her up and deliver her to any foreign
country that has a “legitimate sovereign interest” in her.
No. 18-5032, Gov’t Opening Br. 27; No. 18-5032, Gov’t Reply
Br. 15; No. 18-5110, Gov’t Supp. Br. 5; No. 18-5110, Gov’t
Second Supp. Br. 3. And a country’s interest in a person
qualifies as “legitimate,” the government submits, if, under
international law, the country would have “prescriptive
jurisdiction” over her—that is, the power to prescribe legal
rules regulating her pertinent conduct. No. 18-5032, Gov’t
Opening Br. 23 (citing Restatement (Fourth) of the Foreign
Relations Law of the United States § 211 (Am. Law Inst. Draft
No. 2, 2016)); see also No. 18-5032, Gov’t Reply Br. 15; No.
18-5110, Gov’t Supp. Br. 4-5; No. 18-5110, Gov’t Second
Supp. Br. 4.
We cannot accept the government’s submission. Munaf
and Wilson do not suggest a general prerogative on the part of
the Executive to seize any American citizen voluntarily
traveling abroad for forcible transfer to any country with some
legitimate sovereign interest in her. Consider again the facts of
Valentine. There was no doubt of the legitimacy of France’s
interest in the U.S.-citizen petitioners in that case: they had
allegedly committed crimes in France. The Executive
nonetheless lacked unilateral authority to “dispose of the[ir]
liberty” by extraditing them. 299 U.S. at 9. That is because,
the Court said, there is generally “no executive discretion to
surrender [a person] to a foreign government, unless . . . [a]
statute or treaty confers the power.” Id.
18
Under the government’s theory, though, everything would
have changed the moment one of the Valentine petitioners
voluntarily ventured outside the United States—say, on a
family vacation to the Canadian side of Niagara Falls. At that
moment, the unilateral “executive discretion” found lacking in
Valentine ostensibly would have sprung to life, such that the
person—though an American citizen—could have been seized
by the Executive and forcibly transferred to France. Cf. United
States v. Alvarez-Machain, 504 U.S. 655, 669-70 (1992)
(involving the seizure in Mexico (of a non-U.S. citizen) for
transfer to the United States).
That expansive vision of unilateral Executive power over
a U.S. citizen who ventures abroad does not follow from Munaf
and Wilson. Those cases did not involve a citizen forcibly
transferred from one foreign country they voluntarily visited to
the custody of another foreign country. The cases instead
involved “the transfer to a sovereign’s authority of an
individual . . . already . . . in that sovereign’s territory.” Munaf,
553 U.S. at 704. The petitioners in Munaf had “voluntarily
traveled” to Iraq, id. at 681, 683, and the petitioner in Wilson,
an Army specialist, was stationed in Japan, 354 U.S. at 525-26.
They were “therefore subject to the territorial jurisdiction of
[those] sovereign[s], not of the United States.” Munaf, 553
U.S. at 704. The petitioners in those cases, already present in
the sovereign’s territory, could be relinquished by the
Executive to that sovereign for prosecution of offenses
allegedly committed while there.
That transfer power, the Munaf Court explained, is
grounded in the receiving country’s “territorial jurisdiction”
over a person who has “voluntarily traveled” to its territory and
is “being held there.” Id. The government, though, reads
Munaf and Wilson to embrace a transfer power extending to a
receiving country’s “prescriptive jurisdiction,” not just its
19
territorial jurisdiction. E.g., No. 18-5032, Gov’t Opening Br.
23. And a country’s prescriptive jurisdiction under customary
international law, the government emphasizes, extends to any
“individual with a ‘genuine connection’ to the state, even when
the individual is located outside the state’s territory.” Id.
(emphasis added); see also Restatement (Fourth) of the Foreign
Relations Law of the United States § 211 (Draft No. 2, 2016).
The government is surely correct that a sovereign’s
prescriptive jurisdiction—its power to regulate conduct—
extends to persons located beyond its borders. The practice of
extraditing individuals from abroad, and the existence of laws
with extraterritorial reach, both illustrate the point. But the fact
that a foreign country may have prescriptive jurisdiction over
an American citizen who is outside its territory hardly means
that, as long as the citizen is somewhere else abroad, the
Executive has power to seize her and deliver her to that foreign
country.
Indeed, we know of no instance—in the history of the
United States—in which the government has forcibly
transferred an American citizen from one foreign country to
another. (That includes the case of Amir Meshal, in which the
government ardently denied a citizen’s allegations that foreign
officials, who had moved him from Kenya, to Somalia, to
Ethiopia, were acting at the United States’s behest. See Meshal
v. Higgenbotham, 47 F. Supp. 3d 115, 119 (D.D.C. 2014),
aff’d, 804 F.3d 417 (D.C. Cir. 2015)). Especially in habeas
cases like this one, “history matters.” Omar, 646 F.3d at 19.
To that end, the absence of even a single known example
of the unilateral power the Executive claims here is
illuminating. Indeed, we are unaware of any involuntary
transfer of a U.S. citizen from one foreign country to another
even pursuant to a treaty or statute. There is all the more
20
reason, then, to proceed with considerable caution before
recognizing such a power as a unilateral (although apparently
never-before-exercised) prerogative of the Executive.
The implications of the government’s reading of Munaf
and Wilson amplify the reasons to reject it. Consider, for
example, a U.S. citizen who becomes a journalist, travels to
Thailand for a multi-year assignment, and, on returning to the
United States, writes articles critical of the Thai King that are
alleged to play some role in sparking demonstrations in
Thailand. Thailand might well argue that she falls within its
prescriptive jurisdiction. And its arguments would have force
if, for instance, she underpaid her Thai taxes while there, or her
articles were deemed to have had a “substantial effect” within
Thailand. See Restatement (Fourth) of the Foreign Relations
Law of the United States §§ 211 & cmt. f, 213 (Draft No. 2,
2016).
If the government were right about Munaf and Wilson,
then the moment the journalist stepped outside the United
States, the Executive would have unilateral power to apprehend
her and forcibly transfer her to Thailand if she were accused of
violating Thai law. (Incidentally, there is a good reason to
think the U.S.-Thai extradition treaty would not apply in that
instance, given that it covers only “persons found in the
territory of one of the Contracting Parties.” Extradition Treaty,
U.S.-Thai., art. 1, Dec. 14, 1983, S. Treaty Doc. No. 98-16.)
By the government’s logic, then, alleged breaches of the Thai
tax code would authorize a forcible transfer. So too would
alleged violations of Thailand’s lèse-majesté statute—under
which anyone who “defames, insults, or threatens the [Thai]
King . . . shall be punished with imprisonment of three to
fifteen years.” Crim. Code B.E. 2499 § 112 (1956), amended
by Crim. Code (No. 17), B.E. 2547 (2003) (Thai.); see Lese-
Majeste Explained: How Thailand Forbids Insult of its
21
Royalty, BBC.com (Oct. 6, 2017) (discussing recent lèse-
majesté prosecutions).
We cannot accept that, if Thailand were to accuse the
American journalist of underpaying taxes or penning articles
critical of the King, the Executive would have unilateral power
to apprehend and forcibly (and irrevocably) transfer her to Thai
custody whenever she ventures outside the United States.
Indeed, the implications of the government’s argument are
more far reaching still. Imagine that the journalist is a dual
citizen of the United States and Thailand. If so, Thailand would
have prescriptive jurisdiction over her regardless of any
violation of Thai law, because, like all sovereigns, it has an
“interest in retaining control over its nationals and residents,
wherever they may be.” Restatement (Fourth) of the Foreign
Relations Law of the United States § 214 cmt. a (Draft No. 2,
2016). Under the government’s theory, then, the Executive
could forcibly transfer the journalist to Thai custody for any
reason Thailand saw fit, including, say, that she would be a
useful witness in a Thai trial. Cf. Blackmer v. United States,
284 U.S. 421, 436-37 (1932).
Thailand’s mere desire to have one of its citizens back
cannot give the Executive the unilateral authority to forcibly
transfer an American there, just because she steps outside the
United States. After all, a dual citizen “is entitled to all the
rights and privileges of [U.S.] citizenship.” Perkins v. Elg, 307
U.S. 325, 349 (1939). That includes the “right to return to and
remain” in the United States after having left. Mandoli, 344
U.S. at 139.
To be sure, if Thailand asked the United States for help in
delivering the journalist to its custody (Thailand presumably
would be reluctant to seize a U.S. citizen on its own), the
Executive could (and presumably would) decline to do so as a
22
matter of discretion. But the question for us is an antecedent
one: whether, in the first place, the Executive would have the
unilateral power to forcibly transfer an American citizen to
another country merely because she travels abroad. We think
the answer is no.
The government emphasizes that, on the facts of this case,
Doe is not just any citizen who traveled someplace abroad and
is suspected of conduct like tax evasion. Rather, he went to an
active battlefield; and Country B, a “coalition partner[] in an
ongoing armed conflict” against ISIL, has, the government
says, “an obvious and legitimate interest in taking custody of”
him. No. 18-5032, Gov’t Reply Br. 6.
Those circumstances, however, do not give the Executive
transfer power under Munaf and Wilson that it would otherwise
lack. Munaf and Wilson, as explained, do not rest on the
military’s authority under the law of war. And we have
declined to read those decisions to manifest a principle of
prescriptive jurisdiction under which the Executive can
forcibly transfer a U.S. citizen who has traveled abroad to any
other country with a legitimate sovereign interest in her. That
a country may have an especially important interest in a
citizen—including by reason of her allegedly hostile actions
against the country’s interests in a time of war—does not affect
that conclusion.
Does this mean that the military necessarily is without
power in a time of war to transfer an enemy combatant who is
a U.S. citizen to an allied country’s custody? No, it does not.
It means that the authority to effect such a transfer does not
come from the general transfer power recognized in Munaf and
Wilson. The authority instead would come from the
Executive’s wartime powers under the law of war, a subject we
turn to next.
23
b.
The government, as noted, has said in this case that its
“determination that [Doe] is an enemy combatant . . . is not the
basis for the U.S. military’s authority to transfer” him to
Country B. No. 18-5032, Gov’t Reply Br. 8. At the same time,
though, the government has also said that “battlefield
detainees” like Doe are “lawfully transferrable under the laws
of war.” Id. at 11; see also id. at 13 (“[P]etitioner’s status as a
U.S. citizen imposes no special constraints on the U.S.
military’s ability to transfer him consistent with the laws of
war.”); No. 18-5110, Gov’t Second Supp. Br. 3 (arguing that
transfer is permissible, in part because of “the Department of
Defense’s good-faith determination . . . that [Doe] is an enemy
combatant”).
We now take up the latter facet of the government’s claim
of authority to transfer Doe: that it can do so pursuant to the
Executive’s wartime powers under the law of war. We
conclude that the Executive does generally possess authority
under the law of war to transfer an enemy combatant to the
custody of an ally in the conflict. But that authority, we hold,
could potentially support a transfer of Doe only if the
government (i) demonstrates that it is legally authorized to use
military force against ISIL, and (ii) affords Doe an adequate
opportunity to challenge the Executive’s factual determination
that he is an ISIL combatant.
i. The starting point for our analysis is the Supreme
Court’s decision in Hamdi v. Rumsfeld, 542 U.S. 507 (2004).
(Because the plurality in Hamdi issued the controlling opinion,
which our court has treated as binding, see Al-Bihani v. Obama,
590 F.3d 866, 872 (D.C. Cir. 2010), we will treat the plurality
opinion as that of the Court for purposes of this opinion.)
There, the Court spoke directly to the military’s authority over
24
an American citizen under the law of war. The case involved
Yaser Esam Hamdi, who, like Doe, was captured on a foreign
battlefield, where the government alleged he had fought with
the Taliban against the United States. Id. at 510, 512-13.
Hamdi, again like Doe, was a dual citizen of the United States
and Saudi Arabia. See Man Held as Enemy Combatant to Be
Freed Soon, CNN.com (Sept. 22, 2004.)
The military initially detained Hamdi in Afghanistan and
at Guantanamo Bay, and then, upon learning he was an
American citizen, brought him to the United States for
continued detention. 542 U.S. at 510. Hamdi then filed a
habeas petition seeking release from his military custody,
alleging that his detention without criminal charge violated his
rights under the Due Process Clause. Id. at 511.
The Court first held that the military had legal authority to
detain Hamdi for the duration of the conflict in which he was
captured. That power flowed from the 2001 Authorization for
Use of Military Force (AUMF), Pub. L. No. 107-40, 115 Stat.
224. 542 U.S. at 517. The 2001 AUMF authorized the
President to “use all necessary and appropriate force against
those nations, organizations, or persons [that] he determines
planned, authorized, committed, or aided the terrorist attacks”
of September 11, 2001. Id. at 510 (quoting 115 Stat. 224,
§ 2(a)). The Court found “no doubt” that Taliban combatants
(like Hamdi was alleged to be) fit within that description. Id.
at 518. And the Court explained that detention of enemy
combatants “for the duration of the particular conflict in which
they were captured” is “so fundamental and accepted an
incident to war as to be an exercise of the ‘necessary and
appropriate force’ Congress ha[d] authorized the President to
use.” Id.
25
The Court next addressed whether Hamdi’s U.S.
citizenship affected the Executive’s power to detain him. On
that issue, the Court found “no bar to this Nation’s holding one
of its own citizens as an enemy combatant.” Id. at 519. After
all, “[a] citizen, no less than an alien, can be part of or
supporting forces hostile to the United States or coalition
partners and engaged in an armed conflict against the United
States.” Id. (internal citation and quotation marks omitted).
Finally, the Court turned to “the question of what process
is constitutionally due to a citizen who disputes his enemy-
combatant status.” Id. at 524. The government argued that its
determination to that effect should be subject to highly
deferential review, solely to confirm the existence of some
evidence supporting it. Id. at 527. The government
emphasized the “limited institutional capabilities of courts in
matters of military decision-making in connection with an
ongoing conflict.” Id. The Court disagreed with the
government.
Because “due process demands some system for a citizen-
detainee to refute his classification,” the Court explained, “the
proposed ‘some evidence’ standard [was] inadequate.” Id. at
537. Rather, “a citizen-detainee seeking to challenge his
classification as an enemy combatant must receive notice of the
factual basis for his classification, and a fair opportunity to
rebut the Government’s factual assertions before a neutral
decisionmaker.” Id. at 533. That process, the Court observed,
could potentially be afforded in a military proceeding. Id. at
538. The Court also clarified, however, that “initial captures
on the battlefield need not receive the process” the Court had
outlined. Id. at 534. Rather, that “process is due only when the
determination is made to continue to hold” a combatant. Id.
26
After Hamdi, we know that if there is legal authority to
exercise military force against an enemy, that authority
encompasses detention of an enemy combatant for the duration
of the conflict. And we further know that the detention
authority more generally extends to an enemy combatant who
is an American citizen. But a citizen, Hamdi instructs, must
have a meaningful opportunity to challenge the factual basis
for his designation as an enemy combatant in accordance with
the procedures set forth by the Court.
ii. Whereas Hamdi addressed whether the Executive can
detain an alleged enemy combatant who is a citizen, this case
(at least at this stage) instead involves whether the Executive
can transfer him to the custody of another country. That
naturally raises two sets of questions. First, is the Executive’s
transfer authority (this case) on par with its detention authority
(Hamdi) as a fundamental incident of waging war? Second, if
so, is the Executive’s exercise of transfer authority against a
U.S. citizen subject to the same conditions attending the
exercise of detention authority against a U.S. citizen? In other
words, do transfer authority over citizens and detention
authority over citizens essentially rise or fall together? We
conclude they do.
First, the military possesses settled wartime authority
under the law of war to transfer enemy combatants to allied
countries. That power, in the words of Hamdi, is “a
fundamental incident of waging war,” such that the Executive
generally has the authority to transfer when it has legal
authorization to engage in hostilities. Id. at 519.
Congress confirmed as much in the National Defense
Authorization Act (NDAA) for Fiscal Year 2012, Pub. L. No.
112-81, 125 Stat. 1298 (Dec. 31, 2011). There, Congress
elaborated on the authority conferred by the 2001 AUMF. It
27
affirmed that the AUMF grants detention authority pending
decision of an enemy combatant’s “disposition under the law
of war”; and it enumerated the available “dispositions” to
include “[t]ransfer to the custody or control of the person’s
country of origin, any other foreign country, or any other
foreign entity.” Id. § 1021(a), (c). Congress thus expressly
considers transfer of an enemy combatant to be one option
available to the military under the law of war. The Department
of Defense’s directives are to the same effect. U.S. Dep’t of
Def., Directive No. 2310.01E, § 3.m (May 24, 2017).
That understanding is firmly rooted in historical practice.
“Throughout the 20th Century, the United States transferred or
released hundreds of thousands of wartime alien detainees—
some of whom had been held in America—back to their home
countries, or in some cases, to other nations.” Kiyemba v.
Obama, 561 F.3d 509, 519-20 (D.C. Cir. 2009) (Kavanaugh,
J., concurring). In World War I, for instance, the United States
regularly transferred captured combatants to France, an ally.
See George G. Lewis & John Mewha, History of Prisoner of
War Utilization by the United States Army 1776-1945, Dep’t of
the Army Pamphlet No. 20-213, at 59 (1955), available at
https://cgsc.cdmhost.com. And in World War II, the United
States transferred hundreds of thousands of Axis soldiers to
allies like Belgium, France, and Luxembourg, where the
soldiers were used as agricultural workers and underwent
rehabilitation. Id. at 240-41. Transfers to allies were also
commonplace during the Vietnam and Gulf Wars. See George
S. Prugh, Law at War: Vietnam 1964-1973, at 62 (1975); U.S.
Dep’t of Def., Office of Gen. Counsel, Law of War Manual at
633 n.742 (Dec. 2016). “Transfers,” in short, “are a traditional
and lawful aspect of U.S. war efforts.” Kiyemba, 561 F.3d at
519 (Kavanaugh, J., concurring).
28
Even if transfers of alien combatants have been a regular
feature of warfare, does the traditional authority to transfer
enemy combatants extend to a U.S. citizen? On this score, the
historical evidence is sparse. As noted, we know of no instance
in which the Executive has forcibly transferred a citizen from
one foreign country to another; and that includes wartime
transfers of enemy combatants.
Hamdi, however, instructs that a traditional military power
over enemy combatants in wartime should generally be
assumed to encompass American citizens. The Court reasoned
that a citizen, “no less than an alien,” can be a part of an enemy
force. 542 U.S. at 519. For that proposition, the Court relied
on its decision in Ex parte Quirin, 317 U.S. 1 (1942), in which
it had upheld the military trial of a U.S. citizen for his unlawful
belligerency in support of the enemy in World War II, id. at 30-
31.
To be sure, Justice Scalia, dissenting in Hamdi, discounted
Quirin as “not [the] Court’s finest hour.” 542 U.S. at 569
(Scalia, J., dissenting). He would have held that the military’s
wartime authority over enemy combatants—including,
presumably, transfer authority—does not extend to a U.S.
citizen (at least absent a suspension of the writ by Congress).
See id. at 554. The Court, though, adhered to Quirin
notwithstanding Justice Scalia’s critique. Id. at 522-23. It thus
found no reason to exclude U.S. citizens from the Executive’s
fundamental authority under the law of war to detain enemy
combatants for the duration of a conflict. Id. at 519. Following
the approach set out in Hamdi, we similarly see no basis for
excluding a citizen—at least as a categorical matter—from the
Executive’s wartime authority to transfer enemy combatants.
Hamdi referenced a Ninth Circuit decision upholding the
Executive’s power to detain, as a prisoner of war, a dual U.S.-
29
Italian citizen who was a member of the Italian forces in World
War II. Id. at 524 (discussing In re Territo, 156 F.2d 142 (9th
Cir. 1946)); see also Ronald D. Rotunda, The Detainee Cases
of 2004 and 2006 and Their Aftermath, 57 Syracuse L. Rev. 1,
13 n.73 (discussing Territo’s dual citizenship). That decision
also contemplated that he would be sent from the United States
back to Italy at the war’s end. See 156 F.2d at 144. True, that
contemplated transfer would have been a “repatriation” to the
enemy state, which, under the law of war, is distinct from a
transfer to an ally (and which, presumably, would result in
release rather than continued detention). Compare Geneva
Convention (III) Relative to the Treatment of Prisoners of War,
art. 12, Aug. 12, 1949, 6 U.S.T. 3316, with id. at art. 118. And
Territo’s repatriation might well have been voluntary,
especially given his family and other connections to Italy (he
sought release from his detention in the U.S, and the opinion
gives no indication that he wanted to stay here if released). See
156 F.2d at 143. Still, Territo offers modest support for the
conclusion that the Executive’s power to transfer under the law
of war applies to both aliens and citizens. And Hamdi, again,
teaches that both aliens and citizens may be subject to the
Executive’s wartime authority.
Second, having determined that the Executive has
authority to transfer enemy combatants under the law of war,
and that there is no blanket exemption from that power for U.S.
citizens, we now assess whether Hamdi’s conditions on the
exercise of detention authority equally govern any exercise of
transfer authority. Those conditions, again, are that the
Executive have legal authority to use military force against the
relevant enemy (here, ISIL), and that the citizen be afforded the
process laid out in Hamdi for challenging the factual
determination that he is an enemy combatant.
30
In considering whether transfer should be subject to those
conditions, an initial point bears noting: the transfer of a citizen
to another country’s custody, unlike continued detention of that
citizen, is irrevocable. Once the Executive relinquishes
custody of an American citizen to another country, our
government, and our laws—including our law’s habeas
guarantee, which a detainee can use to seek relief from
detention over time—would be unavailable to her, perhaps in
perpetuity. Decisions about the duration and conditions of her
custody, and about the availability to her of a means of
challenging her confinement, would be entirely up to the
detaining sovereign.
The government asserts that, when we assess a potential
transferee’s liberty interests, we cannot factor in her continued
detention in the receiving country. That, the government says,
follows from our holding in Kiyemba. 561 F.3d at 515-16.
Here, though, the central issue is not the prospect of continued
detention in Country B, but rather the forcible transfer itself,
which would involuntarily send an American citizen from U.S.
custody to the custody of another country.
In that regard, Kiyemba is starkly different; there, it was
undisputed that the detainees had no cognizable interest against
being moved from Guantanamo to a foreign country. (Indeed,
because transfer was the only relief available to the
petitioners—who, as aliens, had no right to be released into the
United States—they affirmatively sought to be moved to a
foreign country. Id. at 519 n.5 (Kavanaugh, J., concurring)).
Here, by contrast, the transfer centrally implicates Doe’s
interest in not being forcibly moved into Country B’s custody.
Indeed, involuntary transfer of a citizen to the custody of
another sovereign—including via extradition—undoubtedly
involves fundamental liberty interests that can be vindicated in
habeas corpus. E.g., Valentine, 299 U.S. at 9 (“no executive
31
prerogative to dispose of the liberty of the individual” by way
of extradition); Landon v. Plasencia, 459 U.S. 21, 36 (1982).
Cf. Sessions v. Dimaya, 138 S. Ct. 1204, 1213 (2018)
(deportation from the United States can be viewed a more
“severe penalty” for criminal misconduct than imprisonment in
the United States).
Given that transfers involve fundamental liberty interests,
we see no basis for concluding that, for the transfer of a citizen
(as opposed to the detention of a citizen), the Executive need
not satisfy the Hamdi conditions. The 2012 NDAA is
instructive in this regard. There, Congress set out four types of
“disposition[s] under the law of war” that the Executive could
choose for an enemy combatant, including “[d]etention under
the law of war without trial until the end of the hostilities,” and
“[t]ransfer to the custody or control of the person’s country of
origin [or] any other foreign country.” Pub. L. No. 112-81
§ 1021(c)(1), (4). The statutory structure indicates that
Congress saw transfer and detention as two options falling on
largely the same plane—not as one option (transfer) broadly
available in circumstances in which the other (detention) would
not be.
Significantly, our decisions draw an equivalence between
transfer of citizens and detention of citizens. We have rejected
the notion “that the Executive Branch may detain or transfer
Americans or individuals in U.S. territory at will, without any
judicial review of the positive legal authority for the detention
or transfer.” Omar, 646 F.3d at 24 (emphases added). And we
have said that “Congress cannot deny an American citizen or
detainee in U.S. territory the ability to contest the positive legal
authority (and in some situations, also the factual basis) for his
detention or transfer unless Congress suspends the writ.” Id.
(emphasis added). For either “detention or transfer,” then, an
32
“American citizen” is entitled to challenge both “legal
authority” and “factual basis,” as Hamdi envisions.
The government reads the just-quoted language from our
decision in Omar to say that an American citizen can bring a
“legal authority” or “factual basis” challenge to her “detention
or transfer” only if she is in the United States. See No. 18-5032,
Gov’t Reply Br. 14. That is an unsustainable reading. Hamdi
itself rejects the notion that it could “make a determinative
constitutional difference” if an American citizen were detained
overseas rather than in the United States. 542 U.S. at 524. The
Court understood that any such conclusion would “create[] a
perverse incentive” to hold American citizens abroad. Id.
The Omar court’s reference to a challenge brought by “an
American citizen or detainee in U.S. territory” thus plainly
speaks to a challenge brought by a citizen anywhere or by an
alien detained in U.S. territory (such as Guantanamo Bay).
Omar, 646 F.3d at 24 (citing Boumediene v. Bush, 553 U.S.
723, 785-86 (2008)); see also Al Bahlul v. United States, 767
F.3d 1, 65 n.3 (D.C. Cir. 2014) (Kavanaugh, J., concurring in
the judgment in part and dissenting in part) (“As a general
matter, the U.S. Constitution applies to U.S. citizens worldwide
and to non-U.S. citizens within the 50 states and the District of
Columbia[.]”). There is no basis for thinking that a citizen
relinquishes her right to bring a legal challenge to her
detention—or, equivalently, to her transfer—if she is detained
in (or transferred from) a foreign country. That is why the court
in Omar went on to explain that Omar (one of the two Munaf
petitioners), who was still being held in Iraq, had the requisite
opportunity to contest the legal authority for his transfer. Id.
That discussion would have been entirely unnecessary if he had
no right to bring that challenge in the first place since he was
held overseas.
33
Consider the implications if there were, in fact, an
asymmetry between transfer and detention, such that the
Executive could transfer a U.S. citizen to another country
without meeting the Hamdi conditions. With regard to legal
authority, the military could irrevocably transfer a citizen
thought to be an enemy combatant even if judicial review
would have revealed that the Executive lacked lawful authority
to use military force against the particular enemy. In that event,
detainees in U.S. custody—and thus protected by U.S. law—
would need to be released or criminally charged. But for those
who had already been transferred to another country, an
American court could not order their return or grant them
comparable relief.
With regard to a factual-basis challenge, the Hamdi Court
sought to “meet the goal of ensuring that the errant tourist,
embedded journalist, or local aid worker has a chance to prove
military error.” 542 U.S. at 534. The procedural guarantees
prescribed by the Court were intended to guard against an
undue risk of an erroneous military determination. See id. But
if the transfer of a citizen could be accomplished without
affording her those protections, a risk of error thought
unacceptable for continued detention would be present for an
irrevocable transfer to another country. An “errant tourist”
might then be protected against detention but unable to avoid
an irrevocable transfer to another country’s custody. Compare
31A Am. Jur. 2d Extradition § 120 (2d ed. 2018) (describing
process granted to persons subject to extradition); 18 U.S.C.
§ 3191.
The government, in that respect, relies on its having made
a “good-faith determination, supported by extensive record
evidence, that [Doe] is an enemy combatant.” No. 18-5110,
Gov’t Second Supp. Br. 3. We do not doubt the government’s
good faith. Nor do we discount the importance of the need to
34
avoid unduly burdening the Executive’s prosecution of a war,
which concerned the Hamdi Court as well. See 542 U.S. at
531-35. But in Hamdi, one point on which eight Justices
agreed was that, in the case of an American citizen, the
government’s good-faith determination that he is an enemy
combatant is not enough to justify his detention for the duration
of a conflict. Id. at 537; id. at 553 (Souter, J., concurring in
part, dissenting in part, and concurring in the judgment); id. at
564-65 (Scalia, J., dissenting). We find the same to be true of
an irrevocable transfer to another country’s custody.
In that regard, it is instructive to consider the implications
of the government’s argument here for the facts of Hamdi
itself. Upon holding that the government’s continued detention
of Hamdi was contingent on his having a meaningful
opportunity to challenge the factual basis for his detention, the
Court remanded the matter so that the government could
conduct the factfinding process the Court had outlined. See
542 U.S. at 538-39. That process would result in a
determination of whether Hamdi was a person against whom
military force could be applied.
Under the government’s argument here, though, the
Executive, rather than grant Hamdi that process following
remand, could have simply avoided it by choosing instead to
forcibly and irrevocably transfer him to the custody of another
country (pursuant to its authority under the 2001 AUMF).
True, the government eventually did in fact transfer Hamdi to
Saudi Arabia—but with his consent, not over his objection (and
after he renounced his American citizenship). Jerry Markon,
Hamdi Returned to Saudi Arabia, Washington Post (Oct. 12,
2004). There is, of course, a vast difference between a
voluntary transfer and an involuntary one. As to the latter, we
do not believe the Hamdi Court would have countenanced
Hamdi’s forcible transfer to another country unless he were
35
first afforded the process the Court held he was constitutionally
due.
The government’s final argument on this score is that
transfer without process is permissible if effected in
conjunction with “initial capture[] on the battlefield.” No. 18-
5110, Gov’t Supp. Br. 8-9 (quoting Hamdi, 542 U.S. at 534).
But while Hamdi allows for temporary detention without
process attending “initial capture,” a citizen can be released if
there ends up being an insufficient factual basis to continue
detention. Transfer may be different because it, by nature, is
not temporary.
In addition, there would be no citizenship-based limit on
transfer unless there were reason to know that a person is a
citizen. Cf. Asbury Aff. at 4, United States v. Lindh, No. Crim.
02-MJ-51 (E.D. Va. Jan. 15, 2002) (“[Harakat ul-Mujahideen]
officials told [John Walker Lindh] not to admit to anyone that
he was American but to say, if asked, that he was from
Ireland.”) Here, at any rate, the Executive decided to transfer
Doe—and reached an agreement to do so—several months
after his capture. Doe v. Mattis, No. 17-cv-2069, Notice at 1
(D.D.C. Apr. 16, 2018), ECF No. 77; Status Hr’g Tr. at 8
(D.D.C. Jan. 22, 2018), ECF No. 55 (stating that no final
decision had been made on whether to transfer Doe). This
transfer decision, then, was not a battlefield judgment. For
those reasons, the Executive cannot transfer Doe at this stage
unless he receives the process required by Hamdi.
c.
In light of the above analysis, can the Executive
involuntarily transfer Doe to Country B? We conclude it
cannot, at least as things stand now. We take up the two strands
of the government’s argument in order.
36
i. We first address whether the Executive can forcibly
transfer Doe to Country B based on the general transfer
authority recognized in Munaf and Wilson. That authority, as
we have explained, does not encompass the forcible transfer of
a citizen from one foreign country to the custody of another
foreign country. Insofar as the transfer of Doe to Country B
would be an inter-country transfer, it falls outside of Munaf and
Wilson.
The government contends that the transfer nonetheless
should be allowed because Doe is a dual citizen of the United
States and Country B (Saudi Arabia). As a result, the
government emphasizes, Country B has an especially strong
interest in accepting custody over Doe: the interest in
repatriating one of its own nationals in order to attempt to
rehabilitate him consistent with its own laws and practices.
To that end, the government notes that a country always
has prescriptive jurisdiction over its own nationals, including
when they are abroad. See No. 18-5032, Sealed Gov’t Opening
Br. 23 (citing Restatement (Fourth) of the Foreign Relations
Law of the United States § 214 & cmt. a (Draft No. 2, 2016));
No. 18-5032, Sealed Gov’t Reply Br. 15; No. 18-5110, Sealed
Gov’t Supp. Br. 4; No. 18-5110, Sealed Gov’t Second Supp.
Br. 4. And by carrying out the transfer, the government urges,
the United States also would further its own interest in
maintaining constructive relations with an ally in the military
efforts against ISIL (which would, among other benefits, allow
for productive discussions with Country B about the transfer of
additional combatants in the future). See No. 18-5032, Gov’t
Opening Br. 24.
We do not doubt the weight of Country B’s sovereign
interests in (and prescriptive jurisdiction over) Doe based on
all of those considerations, including, in particular, his Saudi
37
citizenship. Nor do we question the Executive’s assessment of
Country B’s interests. See Kiyemba, 561 F.3d at 515. But the
strength of Country B’s interests in Doe as a Saudi citizen does
not diminish the force of Doe’s rights as a U.S. citizen: here,
the right to resist the Executive’s forcible seizure and transfer
of him to the custody of another country. After all, “dual
citizenship presupposes rights of citizenship in each country.”
Kawakita v. United States, 343 U.S. 717, 725 (1952); see Elg,
307 U.S. at 345. And the limits on unilateral Executive
authority ultimately “protect the individual.” Bond v. United
States, 564 U.S. 211, 222 (2011).
Recall, for instance, the example introduced earlier based
on the facts of Valentine: while Valentine held that the
Executive lacked unilateral authority to extradite the
petitioners to France, the Executive, under the government’s
theory, would have gained that authority the moment one of the
petitioners stepped across the border into Canada.
Now imagine that the same petitioner had been a dual
U.S.-French citizen. True, his French citizenship would have
fortified France’s sovereign interests in him (which were
already substantial given his alleged commission of crimes in
France). But his U.S. citizenship still would have meant that
the Executive could not extradite him to France from the
United States. See Valentine, 299 U.S. at 10-13. And it still
would be anomalous to suppose that the Executive gained the
ability to transfer him merely because he set foot in Canada.
Doe’s dual citizenship, in short, does not affect our
conclusion that the transfer authority recognized in Munaf and
Wilson is inapplicable in this case.
ii. We now turn to whether the forcible transfer of Doe to
Country B can be supported by the Executive’s wartime
38
authority over enemy combatants under the law of war. That
authority, as we have explained, encompasses transfers of
enemy combatants to an allied country. But before the
Executive could exercise that transfer power against Doe, the
two Hamdi conditions would need to be met.
The first condition is a determination that the Executive
has legal authority to wage war against ISIL. “For wartime
military transfers,” we have said, “Article II and the relevant
Authorization to Use Military Force generally give the
Executive legal authority to transfer.” Omar, 646 F.3d at 24.
Second, Doe would need to be afforded a meaningful chance
to rebut the government’s factual assertion that he is an ISIL
combatant, per the requirements set out in Hamdi.
Neither condition has been met at this point. Until those
conditions are satisfied, the Executive lacks power under the
law of war to transfer Doe to Country B on the basis of his
status as an alleged ISIL combatant.
2.
Having addressed Doe’s success on the merits of his claim
that a forcible transfer to Country B would be unlawful, we
now consider whether he has shown he would be irreparably
injured absent the injunction. See Winter, 555 U.S. at 20. We
conclude he has made that showing.
A forcible transfer of Doe to the custody of Country B, the
government explains, would be “bona fide and total,” in that
“[o]nce transfer is effectuated,” he “would be entirely in
[Country B’s] custody,” without any continuing oversight by—
or recourse to—the United States. No. 18-5032, Gov’t Reply
Br. 15. Doe, wishing to avoid that irrevocable change in his
station, objects to his proposed transfer to the custody of
39
Country B. No more is required to demonstrate that he would
face irreparable injury if he were involuntarily (and
irreversibly) handed over to Country B in violation of his
constitutional rights.
In contending that Doe fails to establish irreparable injury,
the government observes that the point of a habeas petition is
to obtain release from U.S. custody. And if the planned transfer
of Doe to Country B goes forward, the government observes,
he would no longer be in U.S. custody. So transfer, the
government says, is thus tantamount to release, and there can
be no “irreparable harm from obtaining the very relief his
habeas action seeks to obtain.” No. 18-5110, Gov’t Supp. Br.
10.
The government’s position cannot be correct. It would
mean that any habeas petitioner objecting to a planned
extradition of him would be unable to demonstrate irreparable
injury if he were extradited. We know that is not the case. See
Belbacha v. Bush, 520 F.3d 452, 456 (D.C. Cir. 2008)
(collecting cases granting stays of extradition); Demjanjuk v.
Meese, 784 F.2d 1114, 1118 (D.C. Cir. 1986) (“extradition of
petitioner to Israel may qualify as a threat of irreparable
harm”); see also Nken v. Holder, 556 U.S. 418, 434-35 (2009)
(noting “irreparable nature of harm from removal before
decision on a petition for review”). Of course, a transfer to a
foreign country’s custody necessarily ends U.S. custody; but
the transfer itself is a harm that cannot be remedied.
The government similarly observes that, if Doe were
released from his U.S. custody in Iraq, he would likely be
detained by Iraq. Or, the government says, he might be seized
in Iraq by another country. As a result, the government
contends, there would be a limited practical difference between
40
the release sought by Doe and a transfer to another country.
No. 18-5110, Gov’t Supp. Br. 10-11.
That argument again proves too much. As to the first
point, if detention in Iraq were equivalent to detention in
another country for purposes of irreparable injury, then a
citizen who could lawfully be transferred to one country could
never secure an injunction prohibiting his ensuing transfer to
any other country. By the government’s logic, once the Munaf
Court blessed the petitioners’ transfer to Iraq, they would have
been categorically precluded from getting an injunction barring
their transfer to Albania, Zambia, or any country in between.
As to the second point, once a petitioner is released, he could
conceivably be seized by any country. So if the mere
possibility of apprehension by a country meant that a petitioner
would not be harmed by transfer there, then courts could never
enjoin a transfer to any country on the globe. That is not the
law.
3.
When a private party seeks injunctive relief against the
government, the final two injunction factors—the balance of
equities and the public interest—generally call for weighing the
benefits to the private party from obtaining an injunction
against the harms to the government and the public from being
enjoined. See Pursuing America’s Greatness v. FEC, 831 F.3d
500, 511 (D.C. Cir. 2016). We find the balance to tip in Doe’s
favor.
The equities at stake on both sides are manifestly weighty
ones. The government seeks to avoid undue interference with
its military judgments in connection with ongoing hostilities
and with its conduct of foreign relations with a coalition partner
in that campaign. Doe, meanwhile, seeks to vindicate his rights
41
as an American citizen to avoid a forcible and irrevocable
transfer to (potentially indefinite) custody at the hands of a
foreign sovereign.
As the Supreme Court observed in Hamdi, a citizen’s
“interest in being free from physical detention” is the “most
elemental of liberty interests.” 542 U.S. at 529. The Court
therefore denied the Executive the ability to continue detaining
an alleged enemy combatant in wartime unless it afforded him
procedural protections the Court thought he was
constitutionally owed. And the Court did so despite the
government’s belief that affording additional process would be
unnecessary and unworkable. See id. at 525. Here, we
conclude an injunction barring Doe’s forcible transfer to
Country B’s custody is warranted for substantially similar
reasons and in substantially similar circumstances.
B.
The government also appeals the district court’s order
requiring it to give 72 hours’ notice before transferring Doe to
either Country A or Country B. With regard to Country B, the
government gave the district court the requisite notice before
attempting to effect an agreed-upon transfer. When a
defendant complies with an injunction in that fashion, its
appeal of the injunction becomes moot. See People for the
Ethical Treatment of Animals, Inc. v. Gittens, 396 F.3d 416,
421 (D.C. Cir. 2005). At any rate, now that we have sustained
the injunction barring Doe’s transfer to Country B, any
requirement to give advance notice of such a transfer is beside
the point.
The notice requirement still presents an ongoing
controversy with regard to Country A, however. An order
requiring the government to give advance notice before
42
transferring a detainee to another country cannot be sustained
if there could be no grounds for enjoining the transfer. See
Kiyemba, 561 F.3d at 514. The government relies on that
principle here, contending that any transfer of Doe to Country
A invariably would be lawful. We are unpersuaded.
As an initial matter, we note that, because of the way this
case developed, Doe did not have a meaningful opportunity to
address a potential transfer to Country A. In the government’s
opening brief, it made three alternative requests for relief: (i)
vacatur of the injunction in its entirety, (ii) vacatur of the
injunction as applied to any “country that the Executive Branch
determines has a legitimate interest” in Doe, or (iii) vacatur as
applied only to one specified country. See No. 18-5032, Gov’t
Opening Br. 38. Indeed, the government’s opening brief noted
the possibility of transferring Doe to Country A only in passing
in a footnote. Id. at 31 n.5. Such a reference is ordinarily
inadequate to preserve an argument. See CTS Corp. v. EPA,
759 F.3d 52, 64 (D.C. Cir. 2014). And while the government
specifically included Country A as a possible transferee
country in its reply brief, that was too late. See Abdullah, 753
F.3d at 199-200.
The lateness of the government’s suggestion that it might
wish to transfer Doe to Country A is magnified, because, on the
existing record, we know very little about what such a transfer
would entail. Unlike with Country B, with whom the
government has reached an agreement to transfer Doe, we are
aware of no concrete plans in the works (or on the horizon) to
transfer Doe to Country A. Indeed, the government has not
submitted a single affidavit or declaration discussing a transfer
of Doe to Country A, the reasons that might give rise to an
agreement to transfer Doe there, the terms or expectations
surrounding such a transfer, or the anticipated conditions of his
custody after that transfer. The government has listed at a high
43
level of generality some possible interests Country A could
have in mind if it were to accept custody of Doe. See No. 18-
5032, Gov’t Reply Br. 8-9. But even with regard to that array
of potential interests, we do not know whether a transfer of Doe
would occur only for those reasons.
The government thus essentially seeks blanket
preapproval to transfer Doe to Country A, regardless of the
reasons or circumstances. We decline to recognize that sort of
carte-blanche license in the present circumstances. In Munaf,
the Supreme Court upheld the transfer of the two habeas
petitioners to Iraq’s custody, but only after examining the
reasons for the proposed transfers and the governing law. See
Omar, 646 F.3d at 24. Here, the government asks for an all-
purpose preapproval without any opportunity to assess a
particular transfer before it takes place. Particular transfers to
Country A may or may not be unlawful depending on the
circumstances. The notice requirement secures the ability to
make that assessment at a suitable time.
In these circumstances, we cannot set aside the notice
requirement as to Country A. In terms of likelihood of success
on the merits, with notice of the possibility of a transfer to
Country A and at least some factual information about what
such a transfer might entail, Doe would have had an
opportunity to show that a particular transfer to Country A
would be unlawful. With regard to irreparable injury, a
particular transfer arrangement, depending on the
circumstances, could irrevocably injure his interests, and Doe
did not have an opportunity to address in his briefing the
potential harm he would suffer if transferred to Country A.
And the remaining injunction factors could favor Doe in the
context of a concrete transfer proposal.
44
None of this is to say that, in the end, Doe necessarily will
be able to show that any agreed-upon transfer to Country A
(Iraq) is unlawful. He may or may not be able to do so,
depending on considerations such as: (i) whether, given the
way Doe came to be in Iraq, his presence there qualifies as
“voluntar[y],” Munaf, 553 U.S. at 704, and (ii) whether the
reasons for an agreed-upon transfer should bring the case
within Munaf’s rule allowing transfers of citizens already
within a country’s borders. At this point, without any
information about an agreed-about transfer, we decline to set
aside the notice requirement with regard to Country A.
* * * * *
We affirm the district court’s injunction barring the
government from transferring Doe to Country B, and we also
affirm the district court’s injunction requiring the government
to give 72 hours’ notice before transferring him to Country A.
Our disposition will constrain the government’s ability to
transfer an American citizen believed to be an enemy
combatant more than the government would like. That is an
important consideration in this case in light of the deference
owed to military judgments in wartime. But “such cases,”—
i.e., those in which “a United States citizen [is] captured in a
foreign combat zone”—“must surely be rare.” Hamdi, 542
U.S. at 571 n.3 (Scalia, J., dissenting) (formatting altered).
In those rare cases, the constraints on the Executive could,
in theory, discourage the Executive from taking custody of a
suspected enemy combatant known to be an American citizen.
That was equally true, though, of the Supreme Court’s decision
in Hamdi, which established constraints on the Executive’s
treatment of U.S. citizens captured on a foreign battlefield. We
45
adhere to that decision and apply it to military transfers,
consistent with our precedent. See Omar, 646 F.3d at 24.
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.” Id. at 532; see id. at 558-59 (Scalia, J.,
dissenting). We follow the Court’s guidance today.
It is so ordered.
KAREN LECRAFT HENDERSON, Circuit Judge, dissenting:
A reader, having just reviewed the majority opinion, might well
be thinking it declares a lead-pipe result. Caveat lector. The
opinion treats all but silently the judiciary’s dispositively
downsized role in the theater of war. See Al Bahlul v. United
States, 792 F.3d 1, 28 (D.C. Cir. 2015) (Henderson, J.,
dissenting) (in the “thicket” of international politics and
“waging war,” “our lack of competence is marked,” “our
democratic unaccountability glaring” and “the ramifications of
our actions unpredictable” (internal quotation, citations and
ellipses omitted)), judgment vacated upon grant of reh’g en
banc (Sept. 25, 2015). The majority affirms a preliminary
injunction (Order) that ventures well beyond the district court’s
limited authority. The Order blocks our military from
transferring a battlefield captive, petitioner John Doe, to a
country that has a sovereign interest in him based on his
citizenship there. 1 The district court does not find—because
there is no evidence—that Doe will be mistreated if transferred.
Instead, the point of the Order is to ensure that Doe can
challenge his custody in the hope of winning release therefrom
on his own terms. The Order is without precedent: in Munaf
v. Geren, 553 U.S. 674 (2008), the United States Supreme
Court vacated the only comparable injunction. And worse
than the Order’s novelty is its effect: it disrupts military
operations and sovereign-to-sovereign relations half a world
away.
1
This case involves materials that have been sealed to protect
sensitive diplomatic interests. Consistent with the “presumption of
openness in judicial proceedings,” United States v. Microsoft Corp.,
56 F.3d 1448, 1464 (D.C. Cir. 1995) (per curiam) (internal quotation
omitted), I rely on the public portion of the briefs and record where
possible. Where not possible, I rely on sealed information—mainly
in footnotes—and redact it from the public version hereof.
2
Affirmance portends a hazardous expansion of the
judiciary’s role in matters of war and diplomacy. In defending
the Order, Doe relies on Hamdi v. Rumsfeld, 542 U.S. 507
(2004), by which a habeas court reviews the lawfulness of a
U.S. citizen’s extended military detention. But Hamdi does
not empower a court to enjoin our military from transferring a
battlefield captive not facing extended detention. Much less
does it authorize injunctive relief where, as here, the receiving
country has a facially strong interest in the captive and the
Executive Branch has determined in good faith that he is an
enemy combatant. Habeas is concerned with Executive
Branch “custody,” 28 U.S.C. § 2241(c), not relinquishment of
it. Doe erroneously blurs the distinction. He claims that the
Executive cannot relinquish custody absent authority to
maintain it or, alternatively, absent the “positive legal
authority” of an extradition treaty. I discern no such
requirement in Hamdi or any other precedent Doe cites.
Further, I believe the Order is at odds with Munaf. There,
the Supreme Court vacated a preliminary injunction that
blocked our military from transferring to Iraqi custody an
American citizen determined by military officers—without
Hamdi’s judicial review—to be an enemy combatant. I see no
reason for a different result here: the facts are closely analogous
and the comity and separation of powers considerations that
animated Munaf apply with similar force. If that were not
sufficient to align this case with Munaf, our own decision in
Kiyemba v. Obama, 561 F.3d 509 (D.C. Cir. 2009) (Kiyemba
II), bridges any gap.
I would vacate the Order. It is valid only if Doe shows
that all of the preliminary injunction factors support the district
court’s intrusion into Executive Branch affairs. In my view,
Doe has not carried his burden. Because my colleagues
conclude otherwise, I respectfully dissent.
3
I. BACKGROUND
The majority opinion recounts many of the relevant facts
and much of the procedural history. I include my own
recitation to complete the picture and to amplify points that I
think distance this case from Hamdi and bring it within
Munaf’s ambit. I draw the bulk of the recitation from the
government’s factual return. Public Appendix (App.) 155-
309; see 28 U.S.C. § 2243 (habeas court may require custodian
to “make a return certifying the true cause of the detention”);
Order, Dkt. No. 41 at 1 (Jan. 12, 2018) (court required return).
Doe claims in passing that “the government’s allegations
are riddled with inaccuracies” and “are fundamentally
misleading.” Appellee’s Br. 24 n.3. Yet he does not give us
his own factual account, except to say that terrorists
“kidnapped and imprisoned” him while he was in Syria seeking
to “understand” and “report about” the conflict there. Id.
Otherwise, he accepts the government’s allegations for the
purpose of litigating its authority to detain him. And in his
view, the government’s authority to detain him is all but
coextensive with its discretion to transfer him. Make no
mistake, he is wrong about that. When read together, Hamdi
and Munaf make plain that a putative transferee like Doe is not
on the same legal footing as a detainee the military has decided
to “continue to hold” indefinitely. Hamdi, 542 U.S. at 534
(emphasis altered). Still, given Doe’s view of the purported
overlap—and because he reserves his right to challenge the
government’s allegations only at “a later stage,” Pet’r’s Resp.
to Factual Return, Dkt. No. 59 at 1 (Feb. 9, 2018)—I would
hold him to his stance regarding the government’s authority to
detain him and its discretion to transfer him.
To me, then, it does not matter that Doe baldly “contends
that he is not in fact an [ISIS] combatant.” Maj. Op. 2. His
4
pro forma assertion is contrary to all evidence of record. For
our purpose today, he was found in a foreign war zone during
active hostilities and he admitted training with and working for
a terrorist organization. Accordingly, for our purpose today,
he is on far different ground from a tourist, tax evader or
political dissident. Maj. Op. 4, 18, 20-22.
A. DOE’S BACKGROUND, ISIS MEMBERSHIP AND CAPTURE
Doe is a citizen of Saudi Arabia. He is also a citizen of
the United States but has not lived here since 2006 and has not
visited since 2014. 2
In July 2014, Doe voluntarily traveled to Syria to join the
Islamic State of Iraq and the Levant, a terrorist organization
better known as ISIS. ISIS has committed
systematic abuses of human rights and
violations of international law, including
indiscriminate killing and deliberate targeting
of civilians, mass executions and extrajudicial
killings, persecution of individuals and entire
communities on the basis of their identity,
kidnapping of civilians, forced displacement of
Shia communities and minority groups, killing
and maiming of children, rape and other forms
2
Doe was born in the United States. When he was ten years
old, he moved to Saudi Arabia and became a citizen there. He
returned to the United States for college but moved back to Saudi
Arabia two years later. Before taking up with ISIS, Doe owned
businesses in Saudi Arabia, got married there and fathered a daughter
there. Members of his extended family still live there.
5
of sexual violence, along with numerous other
atrocities.
Dep’t of State, The Global Coalition to Defeat ISIS (Sept. 10,
2014), perma.cc/W9ZV-Y4DV. 3 The United States and 74
other countries have committed to defeating ISIS through
military force and other means. Id.; see Dep’t of State, The
Global Coalition to Defeat ISIS: Partners (Sept. 10, 2014),
perma.cc/SQ57-GQ7R. 4
Starting in or about March 2015, Doe attended ISIS
training in Syria with fellow recruits. At the training site, he
swore allegiance to Abu Hafs al-Maghrebi, who acted on
behalf of ISIS’s leader, Abu Bakr al-Baghdadi. ISIS assigned
Doe to be a fighter in the Zarqawi Brigade, a military unit that
“guard[ed] the front lines” in Syria. App. 195. There, Doe
procured fuel for ISIS vehicles, handled funds for ISIS
expenses and performed other administrative tasks. He was
later assigned to guard the gate of an ISIS oil field and then to
monitor personnel who worked on ISIS’s heavy equipment.
Doe worked for ISIS for about two and one-half years
“until air strikes and other military offensives against [ISIS]
forced him to flee.” App. 162. On or about September 11,
3
ISIS has committed many such acts in Saudi Arabia. See,
e.g., Dep’t of State, Country Reports on Terrorism 2016, 219-20
(July 2017) (Country Reports), perma.cc/Q2J9-LPCX.
4
Saudi Arabia has been “a key member and active participant”
in this coalition. Country Reports, supra, at 219. It has, for
example, joined the United States in launching military strikes
against ISIS targets. Dep’t of Defense, U.S., Saudi Arabia Conduct
Airstrikes Against ISIL in Syria (Oct. 13, 2014), perma.cc/3YEF-
RET3.
6
2017, Syrian Democratic Forces captured him on an active
battlefield as he tried to escape Syria into Turkey. He was
carrying thumb drives that contained ISIS personnel
spreadsheets as well as “military style handbooks” about
techniques for interrogation, handling weapons and building
bombs. App. 199-200. Doe told his captors he had been
walking for two days. ISIS controlled all of the territory
within a two-day walk. Doe’s physical appearance was
“typical of an [ISIS] devotee.” App. 245. And, indeed, he
expressly identified himself as “daesh,” another name for ISIS.
Id. Claiming American citizenship, he said he “wanted to
speak to the Americans” and “turn himself in.” Id.
Because Doe claimed American citizenship, the Syrian
Democratic Forces transferred him “to U.S. forces stationed in
Iraq,” App. 161, within the same theater of combat as his
capture, Public Oral Arg. Tr. 18-19, 31 (Apr. 5, 2018).
According to the factual return, “[t]he Government had not set
out to capture” him but has since “worked diligently to
investigate [him] . . . and determine an appropriate disposition
of him.” App. 161. During custodial interrogation, Doe
admitted that he attended ISIS training and “became an active
member of ISIS.” App. 262-63. Based on those admissions
and other facts, the Executive Branch has concluded that he is
an enemy combatant.
B. DISTRICT COURT PROCEEDINGS
Doe was in United States custody by September 12, 2017.
On September 14, the Defense Department confirmed a news
report that it had a citizen in custody abroad. Betsy Woodruff
& Spencer Ackerman, U.S. Military: American Fighting for
ISIS “Surrenders,” DAILY BEAST (Sept. 14, 2017),
thebea.st/2x1RfeZ.
7
On October 5, 2017—i.e., 23 days after our Armed Forces
took custody of Doe—the American Civil Liberties Union
Foundation (ACLUF) filed a petition for writ of habeas corpus
as his next friend. The petition, which remains pending in
district court, claims that Doe’s custody at the hands of the
United States military is “[u]nauthorized and [u]nlawful.”
App. 19. It asks the court to order the government to “charge
[Doe] with a federal criminal offense in an Article III court or
release him.” App. 23.
On December 23, 2017, the district court ordered the
government to give the ACLUF “immediate and unmonitored
access” to Doe. App. 39. In the same order, the court
prohibited the government from transferring Doe until the
ACLUF informed the court whether Doe wanted the ACLUF
“to continue this action on his behalf.” Id. The government
complied with the order and the ACLUF spoke with Doe by
videoconference. Doe confirmed that he wanted to pursue the
habeas case with the ACLUF as his counsel.
On January 5, 2018, Doe sought “interim relief”
prohibiting the government from transferring him “until the
Court issues a final judgment on his habeas petition.” Pet’r’s
Mot. for Continued Interim Relief, Dkt. No. 32 at 2. He
argued that such relief was necessary “to prevent the United
States from pretermitting this habeas action while the Court
considers the lawfulness of his detention.” Id. at 3 n.4. He
disclaimed then—and has not alleged since—that he will be
mistreated if transferred. Less than two weeks later, the
district court prohibited any transfer pending its ruling on
Doe’s motion for interim relief. Then, on January 23, the
court ordered the government to provide the court and counsel
72 hours’ notice before transferring Doe, “at which time [he]
may file an emergency motion contesting his transfer.” App.
50.
8
On April 16, 2018—pending an expedited appeal of the
notice requirement and after “extensive diplomatic
discussions” with the receiving country—the government
notified the district court and counsel of its intent to transfer
Doe. 5 Resp’t’s Notice, Dkt. No. 80-1 at 7 (redacted version). 6
On April 18, Doe sought a preliminary injunction blocking the
transfer. He renewed his contention that the government
“should not be allowed to pretermit [his] habeas action seeking
his release from unlawful detention by forcibly transferring
him.” Mot. for Prelim. Inj., Dkt. No. 82-1 at 2 (redacted
version).
On April 19, 2018, in the Order sub judice, the district
court granted Doe’s motion for a preliminary injunction. The
Order prohibits the government “from transferring [Doe] from
U.S. custody” absent “further order” of the district court.
Prelim. Inj., Dkt. No. 88. Explaining its Order, the court
recognized that Doe had to show “[1] he is likely to succeed on
the merits, [2] he is likely to suffer irreparable harm in the
5
The government intends to transfer Doe to Saudi Arabia,
which has “an interest in returning its citizens to Saudi custody.”
Sealed Appendix 166. In past negotiations, Saudi Arabia has
pursued that interest and the United States has honored it, to the
benefit of both countries. Id. (returning Saudi citizens to Saudi
Arabia “has been a significant benefit to the United States in
combatting terrorism”); see, e.g., Dep’t of Defense, Detainee
Transfers Announced (Jan. 5, 2017) (noting transfer of four detainees
from Guantanamo Bay to Saudi Arabia), perma.cc/5CRP-74K8.
6
I agree that, because the government satisfied the notice
requirement as to the proposed transfer to Saudi Arabia, the validity
of the requirement as to that transfer is moot. Maj. Op. 41. And
because I would permit the government to effectuate the transfer to
Saudi Arabia, I do not address whether the notice requirement is
valid as to any other country.
9
absence of preliminary relief, [3] the balance of equities tips in
his favor, and [4] an injunction is in the public interest.” Mem.
Op., Dkt. No. 91-1 at 2 (unsealed Apr. 23, 2018) (quoting
Winter v. NRDC, 555 U.S. 7, 20 (2008)) (ellipses omitted).
The court concluded that Doe meets all four requirements. In
the court’s view:
• Doe is likely to succeed on the merits because the
government is required to, and has failed to, “present
positive legal authority for his transfer.” Mem. Op. 3
(internal quotation omitted).
• Doe will suffer irreparable harm absent the Order
because, upon transfer to another country, he “will lose
his constitutional right to contest his detention in a U.S.
court.” Id. at 5.
• The equities favor blocking the transfer because “the
potential harm to bilateral relations between the United
States and its strategic ally does not outweigh [Doe’s]
constitutional right to seek habeas relief.” Id. at 6.
• Similarly, the public interest favors blocking the
transfer because the government’s military and
diplomatic interests do not override “citizens’ rights to
contest the lawfulness of their detentions and transfers.”
Id.
II. ANALYSIS
A preliminary injunction is a “drastic remedy” to be
granted only if the movant makes a “clear showing” that he is
entitled to it. Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)
(per curiam) (internal quotation omitted). To my mind, Doe
does not come close.
10
A. LIKELIHOOD OF SUCCESS
As a threshold matter, Doe misunderstands his burden.
He says “the government . . . must show” his transfer will be
“lawful.” Appellee’s Br. 14 (emphasis added). He adds that,
in deciding whether the government has made that showing, we
cannot “accept[] as true” the allegations in the factual return.
Id. And he suggests the government must possess foursquare
“precedent for the proposition that it may transfer a U.S. citizen
to the custody of a foreign sovereign without positive legal
authority.” Appellee’s Suppl. Br. 5. Doe’s contentions
erroneously treat a preliminary injunction as the baseline.
Such relief is “the exception,” not “the rule.” Munaf, 553 U.S.
at 690. Because it is “extraordinary”—especially where, as
here, it disrupts core functions of a coequal branch of
government—“it is never awarded as of right.” Id. at 689-90
(internal quotation omitted). It is Doe who must justify the
Order, relying on precedent that can bear its weight.
We also have every reason at this stage to accept the
government’s factual allegations. To the extent Doe’s
likelihood of success depends on his being a wayward
bystander kidnapped in ISIS territory, see Appellee’s Br. 23-24
n.3, it is incumbent on him as the moving party to support that
story with evidence and to explain why the government’s
contrary account is inaccurate, see 13 JAMES WM. MOORE ET
AL., MOORE’S FEDERAL PRACTICE § 65.23[2] (3d ed. 2012)
(“Submission of affidavits in support of a motion for a
preliminary injunction is customary.”). Granted, Doe has
reserved the right to challenge the government’s account at “a
later stage.” Pet’r’s Resp. to Factual Return 1. But for now
he provides no “clear evidence”—indeed, no evidence at all—
to rebut the “presumption of regularity” we accord military
assertions like the ones contained in the return. Latif v.
11
Obama, 677 F.3d 1175, 1178 (D.C. Cir. 2012) (internal
quotation omitted).
With Doe’s burden in mind, I turn to the leading cases and
their application vel non here.
1. Law of detention and transfer
Relying heavily on Hamdi, Doe argues that the Executive
Branch cannot transfer him absent “positive legal authority” or
ex ante judicial review of the military’s determination that he
is an enemy combatant. The government argues that, under
Munaf and Kiyemba II, principles of comity and separation of
powers prevent the district court from blocking Doe’s transfer.
I agree with the government.
a. Extended detention in Hamdi
Yaser Hamdi, an American citizen, allegedly took up arms
with the Taliban before September 11, 2001 and remained with
his unit afterward. Hamdi, 542 U.S. at 512-13 (plurality
opinion). Later in 2001, a coalition of our allies captured him
in an active combat zone in Afghanistan. Id. at 510, 514, 516.
They transferred him to the United States military, which in
turn sent him to Guantanamo Bay and later to stateside naval
brigs. Id. at 510. More than six months after Hamdi’s
capture on the battlefield, his father filed a habeas petition as
his next friend. Id. at 511. With no apparent intention of
transferring him to another country, the government claimed
the authority to detain him indefinitely as an enemy combatant.
Id. at 510.
Faced with that claim of authority—to detain Hamdi
without charge “for the duration of the particular conflict in
which [he was] captured,” 542 U.S. at 518—the Supreme Court
agreed that a 2001 congressional enactment supplied the
12
authority if Hamdi was in fact an enemy combatant, id. at 516-
24. The Court turned, then, to “the question of what process
is constitutionally due to a citizen who disputes his enemy-
combatant status.” Id. at 524. Balancing the competing
interests under Mathews v. Eldridge, 424 U.S. 319 (1976), the
Court concluded “that a citizen-detainee seeking to challenge
his classification as an enemy combatant must receive notice
of the factual basis for his classification, and a fair opportunity
to rebut the Government’s factual assertions before a neutral
decisionmaker,” Hamdi, 542 U.S. at 533; see id. at 527-35.
Importantly, however, the Court emphasized “that initial
captures on the battlefield need not receive the process we have
discussed” and that such “process is due only when the
determination is made to continue to hold those who have been
seized.” 542 U.S. at 534 (emphasis altered). Moreover, the
Court repeatedly made plain that its due process analysis
applies only to detention. See, e.g., id. at 509 (concluding that
“citizen held in the United States” must “be given a meaningful
opportunity to contest . . . that detention”); id. at 524 (focusing
on procedures attendant to “detention of enemy combatants”);
id. at 525 (examining relief “available to [an] individual
detained within the United States”); id. at 529 (weighing
“interest in being free from physical detention by one’s own
government”); id. at 530 (considering “interest of the
erroneously detained individual” (emphasis omitted)); id. at
535 (referring to “protections that accompany challenges to
detentions”); cf. id. at 519 (discussing authority for
“detention”); id. at 523 (finding “authority to detain” enemy
combatant). The Court’s analysis mentioned the concept of
sovereign-to-sovereign transfer only once and only in passing.
Id. at 518-19. Even then, it equated transfer with repatriation
or release, not continued detention. Id. (noting that “object of
capture is to prevent the captured individual from serving the
enemy” until he is “exchanged, repatriated or otherwise
13
released” (quoting In re Territo, 156 F.2d 142, 145 (9th Cir.
1946))).
b. Transfer in Munaf
Acting under a United Nations resolution, a coalition force
of 26 countries took Shawqi Omar and Mohammad Munaf into
military custody for their “serious hostile acts” in Iraq.
Munaf, 553 U.S. at 699; see id. at 679, 681, 684. I focus here
on Omar. He was a citizen of the United States and Jordan.
Id. at 681. He was “believed to have provided aid to” al
Qaeda. Id. He was held in Iraq “in the immediate physical
custody of American soldiers.” Id. at 685 (internal quotation
omitted). A tribunal of three American military officers
concluded that he was an enemy combatant. Id. at 681. A
coalition review board reached the same conclusion. Id. at
682. The coalition later “decided to refer” Omar to Iraqi
criminal court “for criminal proceedings.” Id.
Members of Omar’s family filed a habeas petition on his
behalf. Omar v. Harvey, 479 F.3d 1, 4 (D.C. Cir. 2007).
They asserted that Omar was an “innocent civilian[] . . .
unlawfully detained by the United States in violation of the Due
Process Clause.” Munaf, 553 U.S. at 692. As here, the
United States decided to relinquish custody to another country.
Omar, 479 F.3d at 3. As here, the district court “issued a
preliminary injunction barring transfer in order to preserve its
jurisdiction to entertain the habeas petition.” Id. As here, no
criminal charges were pending in the receiving country when
the court issued the preliminary injunction. Id. at 8. As here,
this Court upheld the preliminary injunction on the theory that
it “properly preserve[d]” the district court’s jurisdiction “to test
the lawfulness of . . . extrajudicial detention.” Id. at 8, 15.
The Supreme Court vacated this Court’s decision and the
preliminary injunction itself. Munaf, 553 U.S. at 705. I
14
recognize that the Supreme Court’s holding was narrow: the
Court concluded that district courts cannot “exercise their
habeas jurisdiction to enjoin our Armed Forces from
transferring individuals detained within another sovereign’s
territory to that sovereign’s government for criminal
prosecution.” Id. at 689. But the Court’s reasoning swept
more broadly. Because it weighs heavily against the Order
here, I discuss it in detail.
The Court observed that, “at its core,” habeas is directed at
“unlawful executive detention,” the “typical remedy” for which
is “release.” 553 U.S. at 693. In the Court’s view, the
atypical remedy of blocking Omar’s transfer to Iraq was “not
appropriate.” Id. The Court emphasized that habeas “is
governed by equitable principles,” which means that
“prudential concerns, such as comity and the orderly
administration of criminal justice, may require a federal court
to forgo the exercise of its habeas corpus power.” Id. (internal
citation and quotations omitted). And the Court concluded
that comity—specifically, respect for Iraq’s sovereign interest
in prosecuting crimes committed within Iraq’s borders, even by
citizens of the United States—prevented the district court from
enjoining Omar’s transfer. Id. at 694 (“Iraq has a sovereign
right to prosecute Omar and Munaf for crimes committed on
its soil.”); see id. at 705 (invoking Wilson v. Girard, 354 U.S.
524 (1957) (per curiam), for “background principle” that
foreign country has “sovereign interest in prosecuting crimes
committed within its borders”); id. at 692, 694-99 (same).
In a passage my colleagues downplay, the Court found
further support for its conclusion in separation of powers
principles. Even in peacetime, the Court noted, “the
Constitution allows the Executive to transfer American citizens
to foreign authorities for criminal prosecution.” 553 U.S. at
699. The Court remarked on how “strange” it would be “to
15
hold that the Executive lacks that same authority where, as
here, the detainees were captured by our Armed Forces for
engaging in serious hostile acts against an ally in what the
Government refers to as ‘an active theater of combat.’” Id. at
699-700. “Such a conclusion,” the Court cautioned, “would
implicate . . . concerns about unwarranted judicial intrusion
into the Executive’s ability to conduct military operations
abroad.” Id. at 700.
Finally, the Court rejected Omar’s contention that “the
Government may not transfer a citizen” to another country
“without legal authority” in the form of “a treaty or statute.”
553 U.S. at 704 (internal quotations and brackets omitted).
Omar had relied on Valentine v. United States ex rel.
Neidecker, 299 U.S. 5 (1936), which the Court found “readily
distinguishable” because “[i]t involved the extradition of an
individual from the United States.” 553 U.S. at 704. The
Court acknowledged that, in the context of extradition from the
territorial United States, the government cannot “‘seize [a
fugitive criminal] and surrender him to a foreign power’”
absent authority conferred by “a pertinent constitutional or
legislative provision.” Id. (quoting Valentine, 299 U.S. at 9).
“But Omar . . . voluntarily traveled to Iraq” and was “captured
and already detained” there. Id. Because he was not within
the territorial jurisdiction of the United States, Valentine was
inapposite. Id.
c. Transfer in Kiymeba II
The district court in the Kiyemba litigation required the
government to provide 30 days’ notice to the court and counsel
before transferring nine Uighurs from Guantanamo Bay to any
“country where they might be tortured or further detained.”
Kiyemba II, 561 F.3d at 511. In this Court, the Uighurs
defended the district court’s order as essential “to protect[ing]
16
the court’s jurisdiction over their underlying claims of unlawful
detention.” Id. at 513 n.3. Treating the order as a preliminary
injunction, this Court vacated it because the Uighurs did not
“make the required showing of a likelihood of success on the
merits.” Id. at 516.
Even “assum[ing] arguendo these alien detainees have the
same constitutional rights with respect to their proposed
transfer as did the U.S. citizens facing transfer in Munaf,” 561
F.3d at 514 n.4, this Court held that “Munaf precludes the
district court from barring the transfer of a Guantanamo
detainee on the ground that he is likely to be tortured or subject
to further prosecution or detention in the recipient country,” id.
at 516. The Court accepted the government’s representation
that “any prosecution or detention the petitioners might face
would be effected ‘by the foreign government pursuant to its
own laws and not on behalf of the United States.’” Id. at 515
(quoting declaration of Defense Department official). And
the Court reasoned that, under Munaf, “comity and respect for
foreign sovereigns . . . bar[] a court from issuing a writ of
habeas corpus to shield a detainee from prosecution and
detention by another sovereign according to its laws.” Id.
(internal quotation omitted).
Taking a further cue from Munaf, the Court added that
“separation of powers principles” “preclude the courts from
second-guessing” the Executive Branch with respect to
transfer. 561 F.3d at 515. The Court concluded that the
district court’s notice requirement alone—even without regard
to potentially blocking the transfer itself—unduly “interfere[d]
with the Executive’s ability to conduct the sensitive diplomatic
negotiations required to arrange safe transfers for detainees.”
Id.
17
2. Application to Doe’s transfer
Under the foregoing framework, Doe has not shown—in
fact, cannot show—that he will likely succeed on the merits.
a. As Judge Brown recognized in Omar, “we must first
[ask] in what sense” a putative transferee “must be likely to
succeed.” 479 F.3d at 18 (Brown, J., dissenting in part). The
Supreme Court answered that question in Munaf: we look to
whether he will likely succeed on “the merits of [his] habeas
petition.” 553 U.S. at 690.
Here, Doe’s habeas petition challenges his detention at the
hands of the Executive Branch. App. 11 (alleging that Doe is
“being unlawfully detained by the United States military”);
App. 13 (stating that Secretary of Defense “is detaining [Doe]
under or by color of the authority of the United States”); App.
17 (claiming that detention violates 18 U.S.C. § 4001(a), which
applies to “citizen . . . imprisoned or otherwise detained by the
United States”); App. 20 (challenging “detention . . . by
Respondent”). Doe therefore cannot succeed on the merits of
his habeas petition unless he remains “detained by the United
States.” App. 17 (quoting section 4001(a)). And he will not
remain detained by the United States if the district court has
improperly blocked the government from relinquishing
custody to Saudi Arabia.
b. To repeat, habeas “at its core” is aimed at “unlawful
executive detention,” not at a transfer that ends it. Munaf, 553
U.S. at 693. Accordingly, if it is ever “appropriate,” as a
matter of “equitable principles,” to enjoin a captive’s transfer
from Executive Branch custody simply to allow him to
challenge that soon-to-be-erstwhile custody, such relief ought
to be reserved for the most “extreme case” of Executive Branch
malfeasance. Id. at 693, 702 (internal quotation omitted); see,
e.g., id. at 702 (suggesting relief might be warranted if “the
18
Executive has determined that a detainee is likely to be tortured
but decides to transfer him anyway”). Doe’s case is by no
means extreme in that sense. Indeed, it tracks Munaf in two
crucial respects.
First, as in Munaf, the receiving country here has a facially
strong—for that matter, all but undisputed—interest in the
transfer.7 Granted, the particular interest here is slightly different
from that in Munaf. There, the Court relied on Iraq’s
“sovereign right to prosecute Omar and Munaf for crimes
committed on its soil.” Id. at 694. Here, by contrast, Doe did
not (as far as the record discloses) commit crimes within the
receiving country’s territory and he has not (to date) been
charged with any offense there. But the difference in the two
cases is not as stark as Doe would have it: recall that Omar had
not been charged with a crime in Iraq before the district court
issued the preliminary injunction, or even before this Court
issued a decision. Compare Appellee’s Br. 31 (attempting to
distinguish Omar’s case on basis that Iraq “was actively
prosecuting” him), with Omar, 479 F.3d at 8 (noting that
“Omar has not been charged with a crime related to the
allegations now lodged against him”). More to the point,
focusing on a receiving country’s interest in prosecuting
territorial offenses misses the ocean for the boat: in the habeas
context, comity is why the prosecutorial interest matters.
Munaf, 553 U.S. at 693 (“Habeas corpus is governed by
7
Doe does not dispute that he is a citizen of Saudi Arabia and
has spent much of his life there. See supra note 2. Nor does he
dispute that the Saudi government has an interest in repatriating its
citizens, including radicalized ISIS-affiliated citizens who are
detained abroad and are candidates for rehabilitation. See supra
notes 3-5; see also Decl. ¶¶ 2-3 (Apr. 16, 2018) (detailing
Saudi interest in repatriation and rehabilitation); Country Reports,
supra, at 222 (same).
19
equitable principles,” including “prudential concerns . . . such
as comity.” (internal quotations omitted)); see id. at 698-99
(relying on “principles of comity and respect for foreign
sovereigns” (quoting Omar, 479 F.3d at 17 (Brown, J.,
dissenting in part))).
Comity is “[c]ourtesy” towards “the laws and usages” of
another nation. III OXFORD ENGLISH DICTIONARY 539 (2d ed.
1989). By definition, it counsels “mutual recognition of
legislative, executive, and judicial acts” that go well beyond
prosecutorial prerogatives. BLACK’S LAW DICTIONARY 324
(10th ed. 2014). In some cases, then, comity weighs against
blocking a captive’s transfer even if the receiving country
claims no immediate interest in prosecuting him for a territorial
offense.
Perhaps the most obvious case is one like Doe’s, in which
the captive is a citizen of the receiving country. Customary
international law recognizes a state’s “sovereign[] interest in
retaining control over its nationals and residents, wherever they
may be.” RESTATEMENT (FOURTH) OF THE FOREIGN
RELATIONS LAW OF THE UNITED STATES § 214 cmt. a (2016
draft); see id. § 211 cmt. c (state has jurisdiction over “conduct
occurring on the state’s territory or being committed by or
against its nationals” (emphasis added)); see also Blackmer v.
United States, 284 U.S. 421, 437 n.2 (1932) (under
international law, state has “jurisdiction over its subjects
travelling or residing abroad, since they remain under its
personal supremacy” (internal quotation omitted)).
In any event, Kiyemba II demonstrates that the availability
of habeas relief does not depend on whether the putative
transferee will be prosecuted by the receiving state. This
Court held that “Munaf precludes the district court from barring
the transfer of a Guantanamo detainee on the ground that he is
20
likely to be tortured or subject to further prosecution or
detention in the recipient country.” 8 Kiyemba II, 561 F.3d at
516 (emphasis added).
Second, the separation of powers considerations
highlighted in Munaf also apply here. When “‘adjudicating
issues inevitably entangled in the conduct of our international
relations,’” a court is “to proceed ‘with . . . circumspection.’”
Munaf, 553 U.S. at 689 (quoting Romero v. Int’l Terminal
Operating Co., 358 U.S. 354, 383 (1959)). Far from
circumspect, the Order upends the Executive Branch’s decision
to relinquish Doe to a country the district court acknowledges
is a “strategic ally.” Mem. Op. 6. Much as in Munaf, the
Executive’s decision was informed by the ally’s sovereign
interest in Doe and by our military’s good-faith determination
that he committed “serious hostile acts” in “an active theater of
combat” where he was captured and remains detained. 9 Munaf,
553 U.S. at 699-700; see generally App. 155-309 (factual
return). Thus, the Order is every bit the “judicial intrusion”
into “military operations” and “sensitive diplomatic
negotiations” that the preliminary injunctions in Munaf and
8
Doe tries to distinguish Kiyemba II on the ground that the
Uighurs were non-citizens. It is a fair point but goes only so far; the
Court “assume[d] arguendo” the Uighurs had “the same
constitutional rights with respect to their proposed transfer as did the
U.S. citizens facing transfer in Munaf.” 561 F.3d at 514 n.4.
9
At oral argument, Doe contended that the record contains
evidence only that the determination was made, not that it was made
in good faith. Because there is no evidence that the determination
was made in bad faith, however, I see no reason to question the
government’s motives. Cf. Latif, 677 F.3d at 1178-85.
21
Kiyemba II were. Munaf, 553 U.S. at 700; Kiyemba II, 561
F.3d at 515.
c. Doe argues that Hamdi justifies the intrusion. He
contends that, absent an applicable extradition treaty,
Appellee’s Suppl. Br. 10; see infra pp. 23-27, the government
cannot transfer him unless it “can lawfully detain [him] as an
enemy combatant in the first place,” Appellee’s Br. 23. It
follows, in his view, that the district court can appropriately
block his transfer in order to review the government’s
“unilateral and untested assertion” that he is a detainable
enemy combatant. Id. To hold otherwise, he says, would
wrongly deprive him of the due process protections to which
Hamdi entitles him.
I disagree. For starters, the Supreme Court in Munaf did
not read Hamdi the way Doe does. Omar was merely “alleged
to have committed hostile or warlike acts in Iraq.” 553 U.S.
at 679 (emphasis added); see id. at 694 (he was “alleged to have
committed serious crimes in Iraq” (emphasis added)). Based
on those alleged hostile acts, military authorities decided that
Omar was an enemy combatant. Id. at 681-82. The Court did
not hold that a federal judge had to review that determination
as a prerequisite to transfer, whether as a matter of “positive
legal authority” or due process. To the contrary, the Court
concluded that it was “not appropriate” to block Omar’s
transfer for the sake of ensuring he could litigate, via habeas,
his claim that he was an “innocent civilian[] . . . unlawfully
detained by the United States in violation of the Due Process
Clause.” Id. at 692-93.
Notably, the Court in Munaf cited Hamdi only once, for
the proposition that “[h]abeas is at its core a remedy for
unlawful executive detention.” 553 U.S. at 693 (emphasis
added). Conversely, as mentioned above, the Court in Hamdi
22
invoked the concept of sovereign-to-sovereign transfer only
once, equating it with repatriation or release rather than
detention. 542 U.S. at 518-19. Reading the cases together, I
can only conclude that detention and transfer are not flipsides
of the same coin but two entirely different currencies. Hamdi,
in short, does not apply to Doe’s transfer. It is a case about
detention potentially “for the duration of the relevant
hostilities.” Id. at 519. To reiterate, the Court excepted
“initial captures on the battlefield” from “the process we have
discussed,” emphasizing that such “process is due only when
the determination is made to continue to hold those who have
been seized.” Id. at 534 (emphasis altered); see id. at 529
(Hamdi’s “liberty interest[]” was “in being free from physical
detention by [his] own government”).
Nevertheless, according to Doe, wherever one draws the
line between battlefield captive and long-term detainee, he falls
on the latter side. In his telling, this case involves an
Executive Branch decision to detain him without charge for an
extended period, now exceeding six months. Appellee’s
Second Suppl. Br. 6 (asserting “government decide[d] not to
release him . . . six months ago” when it moved to dismiss his
habeas petition). I reject that characterization.
Rewind to September 12, 2017, when our military took
custody of Doe. In an active combat zone, it faced the real-
time decision of what to do with a battlefield captive who
admitted affiliation with ISIS. Should it detain him
indefinitely as an enemy combatant? Transport him to the
United States and charge him with a crime? Transfer him to a
country with a sovereign interest in him? When the ACLUF
filed the habeas petition on October 5, “the Government was
still engaged in this decisional process” and had yet to choose
a course of action. App. 161. No surprise there: the
government had had a mere 23 days to investigate Doe. Since
23
then, this litigation has left the government in a poor position
to consider, negotiate and effectuate Doe’s transfer. App. 153
(according to State Department, litigation contingencies have
“hinder[ed] the Department’s ability to engage constructively
with” receiving country); see Kiyemba II, 561 F.3d at 515
(“[T]he requirement that the Government provide pre-transfer
notice interferes with the Executive’s ability to conduct the
sensitive diplomatic negotiations required to arrange safe
transfers[.]”). 10
The end result is the judicial equivalent of mission creep.
After today, a habeas court is authorized to review not only a
decision to “continue” Executive Branch custody of a citizen
captured abroad on an active battlefield, Hamdi, 542 U.S. at
534, but also—extraordinarily—a decision to discontinue it.
Indeed, if the captive’s next friend gets to the courthouse
quickly enough, nearly any Executive decision about the
captive will be subject to judicial review. Doe makes no
showing—much less a clear showing—that Hamdi reserves so
little breathing room for the military’s on-the-ground
judgment.
d. Doe likewise makes no clear showing that Valentine
v. United States ex rel. Neidecker, 299 U.S. 5 (1936), or Wilson
v. Girard, 354 U.S. 524 (1957) (per curiam), supports the
Order. He claims that Valentine forbids the government to
10
Doe himself argues that the government could not
appropriately transfer him once the habeas petition was filed.
Public Oral Arg. Tr. 59-61 (Apr. 5, 2018). And at Doe’s urging, the
district court has issued a series of orders restricting his transfer. I
do not suggest there was anything improper about his litigation
choices. But they inevitably delayed the decision to transfer him.
In my view, affirmance of the Order mistakenly lays the
consequences of Doe’s choices at the Executive Branch’s feet.
24
relinquish him to another country absent “positive legal
authority” set forth in a statute or extradition treaty. But
Valentine involved “fugitive criminal[s]” apprehended in the
United States. 299 U.S. at 9, 11 (internal quotation omitted);
see id. at 6 (they were United States citizens arrested in New
York based on criminal charges in France). In that “very
narrow” context, United States ex rel. Neidecker v. Valentine,
81 F.2d 32, 33 (2d Cir. 1936), the Supreme Court required a
“statute or treaty confer[ring] the power” to extradite, 299 U.S.
at 9.
Doe bears no resemblance to the fugitives in Valentine.
He voluntarily traveled abroad to an active war zone. He was
captured on a foreign battlefield by foreign military forces.
He admitted affiliation with a terrorist organization the United
States is combatting militarily. And he was taken at his own
request into United States military custody within the same
theater of combat. Nothing in Valentine indicates that
extradition rules apply to such a person any more than the laws
of war apply to a fugitive criminal apprehended in the United
States. The Supreme Court in Munaf drew a line between the
two types of cases in rejecting Omar’s argument that the
Executive Branch could not transfer him to Iraq “without legal
authority” in the form of “a treaty or statute.” 553 U.S. at 704
(internal quotations omitted). “Valentine,” the Court
observed, was “readily distinguishable” because “[i]t involved
the extradition of an individual from the United States.” Id.
(emphasis added). Valentine is distinguishable here for the
same reason. Moreover, because Doe has the burden of
persuasion, I think it significant that—despite numerous armed
conflicts since 1936—he cites no case that has ever applied
25
Valentine to the wartime transfer of a battlefield captive
abroad. 11
Doe is similarly mistaken in suggesting that Wilson v.
Girard requires “positive legal authority” for his transfer. At
issue in Wilson was a bilateral Status of Forces Agreement
between the United States and Japan. 354 U.S. at 527-28.
The Agreement provided that the American military had
jurisdiction over acts committed in Japan by American
servicemen in performance of their duties. Id. The
Agreement also required the United States to “notify” Japanese
authorities “as soon as practicable” if it “decide[d] not to
exercise jurisdiction.” Id. at 528. Finally, the Agreement
provided that the United States, when making that decision,
was to give Japan’s interests “sympathetic consideration.” Id.
Against this backdrop, Girard, an American serviceman in
Japan, was alleged to have killed a Japanese national there.
11
The phrase “positive legal authority” does not appear in
Valentine, Munaf or any other Supreme Court precedent. Doe
draws it from Omar v. McHugh, 646 F.3d 13 (D.C. Cir. 2011), a slim
reed on which to base such a requirement. There, on remand from
Munaf, this Court held that Omar lacked any “right to judicial review
of conditions in Iraq before he is transferred,” id. at 18, but
emphasized it was not holding that “the Executive Branch may detain
or transfer Americans or individuals in U.S. territory at will, without
any judicial review of the positive legal authority for the detention or
transfer,” id. at 24. The caveat was as obiter as dictum can be: the
Court acknowledged that Munaf had already settled the
government’s “authority” to transfer Omar and that, on remand, the
Court was “addressing Omar’s separate argument . . . about
conditions in the receiving country.” Id. At all events, the Court
did not purport to eliminate the sharp distinction between fugitives
“in U.S. territory” on the one hand and “wartime military transfers”
on the other. Id.
26
354 U.S. at 525-26. Because he did so, arguably in
performance of his duties, id. at 529, the Agreement “seemed
to give [him] a right to be tried by an American military
tribunal, not a Japanese court,” Munaf, 553 U.S. at 705
(discussing Wilson). But the Executive Branch “decided not
to exercise . . . jurisdiction.” Wilson, 354 U.S. at 529. Per the
Agreement, it notified the Japanese government that it intended
to transfer Girard to Japanese custody for trial in a Japanese
court. Id. at 526, 529. In turn, the Japanese government
indicted him. Id. at 526. Girard petitioned for habeas relief
and a district court here in the United States enjoined his
transfer. Id. Far from requiring affirmative authority for the
transfer, the Supreme Court vacated the injunction because the
Court discerned “no constitutional or statutory barrier” to the
transfer. Id. at 530 (emphasis added). “In the absence of
such encroachments,” the Court deferred to the “wisdom” of
the political branches. Id. The Court apparently saw nothing
of relevance in Valentine, which it nowhere mentioned.
Doe nevertheless reads Wilson to hold that “a treaty
satisfied the requirement of positive legal authority for the
transfer.” Appellee’s Suppl. Br. 6. He misunderstands the
Status of Forces Agreement. The Agreement—which was
“[t]he only ‘authority’ at issue in Wilson”—permitted the
United States to refuse a transfer and to exercise jurisdiction
itself notwithstanding the “background principle” that Japan,
absent the Agreement, “had exclusive jurisdiction ‘to punish
offenses . . . committed within its borders.’” Munaf, 553 U.S.
at 696, 705 (quoting Wilson, 354 U.S. at 529). The
Agreement’s mere procedural requirements—to give Japan’s
interests “consideration” and to promptly “notify” Japan when
the United States “decide[d] not to exercise jurisdiction,”
Wilson, 354 U.S. at 528 (emphasis added)—were hardly
“authority” for a transfer, let alone the sort of “positive legal
authority” that Doe demands here. The Court in Munaf
27
recognized as much. It held that Wilson outright “forecloses”
the “argument that the Executive lacks the discretion to transfer
a citizen absent a treaty or statute.” 553 U.S. at 705. That
holding makes sense only if the Munaf Court rejected the
notion that the Agreement served as “authority” for the transfer
in Wilson.
e. Doe suggests the foregoing analysis cannot possibly
be correct because, as he sees it, it gives the Executive Branch
license to run roughshod over the rights of American citizens
with no judicial check. See, e.g., Appellee’s Br. 52 (it
“make[s] a mockery of the Great Writ”); Appellee’s Suppl. Br.
6 (it means citizens “surrender [their] constitutional rights
when abroad” (internal quotation omitted)); Appellee’s Second
Suppl. Br. 10 (it means “government’s power to dispose of
citizens” is not “constrained by law”). None of this is so.
When someone in Executive Branch custody files a habeas
petition, the federal courts ensure that the Executive handles
him “in accordance with law,” including due process. Hamdi,
542 U.S. at 525 (citing INS v. St. Cyr, 533 U.S. 289, 301
(2001)). But there are limits to a habeas court’s equitable
power, even if the petitioner is a citizen. Under Munaf, for
example, “prudential concerns . . . may require [the] court to
forgo the exercise of its habeas corpus power.” 553 U.S. at
693 (internal quotations omitted). I have explained why, in
my view, considerations of comity and separation of powers
preclude the Order here. Especially important to me are Doe’s
voluntary travel abroad to a war zone during active hostilities;
his capture on a foreign battlefield by foreign military forces;
his admitted affiliation with a terrorist organization the United
States is combatting militarily; the Executive Branch’s
resulting good-faith determination that Doe is an enemy
combatant; Doe’s continued presence in the same active theater
28
of combat as his capture; and the receiving country’s facially
compelling interest in his transfer.
If these facts differed, the prudential considerations might
differ and the district court might have equitable authority to
block a transfer. For instance, Munaf reserves the possibility
of judicial intervention if the Executive Branch “determine[s]
that a detainee is likely to be tortured but decides to transfer
him anyway.” 553 U.S. at 702. Similarly, the government
appears to concede “that the courts have a role to play” in
ensuring that the Executive Branch does not transfer a
battlefield captive to a country that lacks a “legitimate basis”
in law to receive him. Public Oral Arg. Tr. 10, 17, 34 (Apr. 5,
2018).
Here, however, we have no record-based reason to assume
Executive Branch bad faith or negligence. Rather, as the
Supreme Court admonished in Munaf, “we need not assume the
political branches are oblivious” to a transferee’s well-being.
553 U.S. at 702 (quoting Omar, 479 F.3d at 20 n.6 (Brown, J.,
dissenting in part)). Nor should we be distracted by any
“farfetched hypothetical[],” Gutierrez v. Waterman Steamship
Corp., 373 U.S. 206, 210 (1963), that “veers far from the case
before us,” Digital Realty Trust, Inc. v. Somers, 138 S. Ct. 767,
781 (2018); see, e.g., Public Oral Arg. Recording 34:20-34:48
(Apr. 27, 2018) (Doe hypothesizes transfer “to Bolivia or
Madagascar” or some other country with no sovereign interest
in him); see also, e.g., Maj. Op. 20-22 (majority hypothesizes
transfer to Thailand based on political criticism).
The long and short of it is that Doe does not dispositively
differ from the petitioners in Munaf. Necessarily, I do not read
that opinion the same way my colleagues do. On their view,
“the war-related context” of Munaf “did not diminish” the
military’s discretion to transfer Omar to Iraqi authorities, at
29
least as compared to the military’s discretion to transfer Girard
to Japanese authorities during peacetime. Maj. Op. 15. If my
colleagues imply that the war context of Munaf made no
difference, I disagree: the Supreme Court was explicit that
“more [was] at issue” in Munaf than in Wilson, which did not
involve a petitioner captured on a battlefield in “‘an active
theater of combat’” “during ongoing hostilities.” Munaf, 553
U.S. at 699-700 (accepting government’s characterization to
that effect). Although my colleagues do not mention it, those
are the very circumstances that gave rise to the Court’s
“concerns about unwarranted judicial intrusion into the
Executive’s ability to conduct military operations abroad.” Id.
at 700. Those same circumstances—and, thus, those same
separation of powers concerns—are equally in play here.
Doe’s battlefield capture during ongoing hostilities and his
admitted affiliation with ISIS align him with the Munaf
petitioners and readily distinguish him from the civilians in my
colleagues’ counterfactual detours. Maj. Op. 4, 18, 20-22.
B. OTHER FACTORS
Because I believe Doe has not demonstrated a likelihood
of success, I do not think it strictly necessary to consider the
other preliminary injunction factors. See Kiyemba II, 561
F.3d at 516 (vacating injunction without consideration of other
factors because Uighurs did not “make the required showing of
a likelihood of success on the merits”); see also, e.g., Greater
New Orleans Fair Hous. Action Ctr. v. HUD, 639 F.3d 1078,
1088 (D.C. Cir. 2011) (“When a plaintiff has not shown a
likelihood of success on the merits, there is no need to consider
the remaining factors.”). Nevertheless, I briefly address the
remaining factors because in my view the Order badly
misjudges them.
30
Irreparable harm. This Court “has set a high standard”
for irreparable harm: “the injury must be both certain and
great” and “must be actual and not theoretical.” Chaplaincy
of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C.
Cir. 2006) (internal quotation omitted). On this requirement,
too, Doe falls short.
The district court finds that Doe will suffer irreparable
harm absent the Order because, once transferred, he “will lose
his constitutional right to contest his detention in a U.S. court.”
Mem. Op. 5. That is half right: because Doe’s petition
challenges his detention by the Executive Branch, he will no
longer have a viable habeas case once it divests itself of
custody. See Qassim v. Bush, 466 F.3d 1073, 1074-77 (D.C.
Cir. 2006) (per curiam) (transfer of Uighurs from Guantanamo
Bay to Albania effected release and mooted habeas claims); see
also supra pp. 17-18. Contrary to the district court’s view,
however, Doe has no cognizable interest in pursuing his
petition once he is released from the very custody he
challenges. See Munaf, 553 U.S. at 692-93 (it was “not
appropriate” to enjoin transfer to ensure petitioners could
litigate their claim that “they are innocent civilians”). And
because Doe has no cognizable interest in litigating a moot
petition, he will suffer no “certain,” “great” and “actual” harm
from being denied the opportunity to pursue it. England, 454
F.3d at 297 (internal quotation omitted); see Ralph v. Lucent
Techs., Inc., 135 F.3d 166, 170 (1st Cir. 1998) (“A federal court
must find a cognizable threat of irreparable harm as an essential
prerequisite to the issuance of a preliminary injunction.”
(emphasis added)).
Even apart from the mootness problem, Doe’s litigating
position precludes him from showing irreparable harm. He
says he seeks nothing more than “release simplicit[er]”—that
is, “for the United States simply to open the jailhouse doors and
31
let him go” in Iraq. Public Oral Arg. Tr. 80 (Apr. 5, 2018).
He does not ask to be transported to the United States. He
concedes that the Executive Branch is free to notify Iraqi
authorities upon his release and that, immediately thereafter,
the Iraqi government or other foreign authorities are free to
apprehend him.
These are major concessions, and necessary ones. See
Munaf, 553 U.S. at 689 (district court could not forbid
Executive from “sharing” with Iraqi government “details
concerning any decision to release Omar”); id. at 694 (it could
not require Executive to “shelter” Omar from prosecution in
Iraq); id. at 697 (it could not order Executive to “smuggle”
Omar “out of Iraq”). As the government aptly observes, the
concessions mean there is “little practical difference . . .
between the ‘release’ that [Doe] seeks and the ‘transfer’ that
the Government proposes to undertake.” Appellant’s Suppl.
Br. 11.
Doe resists this logic because it is “speculat[ive].”
Appellee’s Suppl. Br. 11. For all we know, he says, no one
will seek to detain him if our military lets him go. This is
classic wishful thinking. Because of his admitted affiliation
with ISIS—and because Iraq and Saudi Arabia are both
members of the coalition against ISIS, see Partners, supra—I
believe it is all but certain he will again be held abroad if the
United States releases him. 12 And any uncertainty on that
12
I recognize that the country and circumstances of such
further detention might differ if the United States were to relinquish
Doe to the Saudi government instead of “simply . . . open[ing] the
jailhouse doors” and subjecting him to recapture. Public Oral Arg.
Tr. 80 (Apr. 5, 2018). But Doe does not allege, let alone show, that
the conditions of detention in the latter scenario would be cognizably
preferable to the conditions in the former. In any event, judges are
ill positioned to compare conditions of detention. Cf. Munaf, 553
32
score operates against Doe, not for him. After all, he must
prove that, absent the Order, he will suffer “certain,” “great”
and “actual” harm. England, 454 F.3d at 297 (internal
quotation omitted). He has failed that task.
Balance of equities. The district court finds that “the
potential harm to bilateral relations between the United States
and its strategic ally does not outweigh [Doe’s] constitutional
right to seek habeas relief.” Mem. Op. 6. But as just
discussed, Doe seeks an end to Executive Branch custody; the
Executive Branch will in fact end that custody by relinquishing
him to the Saudi government; and Doe does not demonstrate
that he will suffer cognizable harm if the Executive Branch so
relinquishes him instead of “simply . . . open[ing] the jailhouse
doors” in Iraq. Public Oral Arg. Tr. 80 (Apr. 5, 2018); see
supra note 12. On the other side of the balance, I take the
Executive Branch’s word that blocking the transfer
complicates our diplomatic relations with the receiving
country. Decl. ¶¶ 8-10 (Apr. 16, 2018); see Latif,
677 F.3d at 1178-85 (applying presumption of regularity in
analogous setting). Common sense and circuit precedent
support its assertion. Kiyemba II, 561 F.3d at 515 (even
requiring “pre-transfer notice interferes with the Executive’s
ability to conduct the sensitive diplomatic negotiations
required to arrange safe transfers”).
In these circumstances, the Executive Branch’s interest in
completing the transfer is at least as strong as Doe’s interest in
blocking it. See De Arellano v. Weinberger, 788 F.2d 762,
764 (D.C. Cir. 1986) (en banc) (per curiam) (where injunction
will “intrude[] into the conduct of foreign and military affairs”
and “‘embarrass the accomplishment of important
U.S. at 702 (“The Judiciary is not suited . . . to pass judgment on
foreign justice systems[.]”).
33
governmental ends, a court of equity acts with caution and only
upon clear showing that its intervention is necessary in order to
prevent an irreparable injury’” (quoting Hurley v. Kincaid, 285
U.S. 95, 104 n.3 (1932))).
The public interest. Most of what has already been said
also goes to the question of where the public interest lies. But
some final observations are in order. The district court
concluded that a citizen’s right to contest his military transfer
outweighs the government’s military and diplomatic priorities.
Mem. Op. 6. That conclusion is shortsighted for at least two
reasons.
First, judicial intrusions like the Order cost the Executive
Branch valuable diplomatic capital. App. 152-54 (declaration
of State Department official); Decl. ¶¶ 8-10 (Apr.
16, 2018) (subsequent declaration of same official); see
Kiyemba II, 561 F.3d at 515. Within bounds that have nowise
been exceeded in Doe’s case, Executive Branch officials have
wide discretion to spend that limited capital as they see fit.
Judges ought not lightly cause them to waste it, especially if it
might better be spent on ensuring that the United States, in
future negotiations, obtains custody of persons in whom it has
a compelling sovereign interest.
Second, contrary to Doe’s hyperbole, the Order and its
affirmance will not necessarily favor “the errant tourist,
embedded journalist, or local aid worker [who seeks] to prove
military error.” Appellee’s Br. 24 (quoting Hamdi, 542 U.S.
at 534). What if our military had known before taking custody
of Doe that it would not be permitted to relinquish him to an
ally with a facially strong interest in him unless it first
litigated—in distant courts, for months, if not years, on end—
the ability to do so? Would our commanders in the field have
declined custody, leaving a citizen to the actions of other
34
countries or, even worse, to the chaos of the battlefield? It
seems to me that today’s result gives the military an incentive
to avoid custody when possible, especially if it is not
immediately clear in the heat of combat that the captive is a
U.S. citizen. And I doubt that the innocent American citizen
who finds himself on a foreign battlefield could fare better than
in the custody of our military.
*****
To borrow an understatement, the Order is “not
appropriate.” Munaf, 553 U.S. at 693. I would vacate it.
Accordingly, I respectfully dissent.