The Trump administration says it has reached a deal to send an unnamed U.S. citizen it has held without charge in military detention for the past seven months to another country, according to court papers—something the man’s attorneys are fanning out to stop.
Should the unnamed citizen, whose detention was first reported by The Daily Beast in September, be sent abroad, it would short-circuit a potential landmark case defining the scope of the Trump administration’s detention powers. It’s also a case, national security lawyers have pointed out, with the prospect of declaring the entire U.S. war against the so-called Islamic State illegal.
The U.S. citizen’s name remains a secret, but he is also, according to an earlier Justice Department filing, a citizen of Saudi Arabia. The court papers do not name the country that the government intends to send the citizen. Since September, the U.S. military has detained him in a facility in Iraq.
In January, the government confirmed to the federal judge hearing his so-called habeas corpus case—a challenge to his detention without charge—that it intended to send him abroad, rather than risk losing the habeas case. “Releasing [the man] from U.S. custody into the custody of another country with a legitimate interest in him is one of the options under consideration,” it wrote, urging Judge Tanya Chutkan not to “foreclose” an option challenged by the man’s attorneys.
In late January, Chutkan, opting for a middle ground, instructed the administration to give 72 hours’ notice of a transfer. The government appealed to a federal circuit court the following month, and a three-judge panel heard the appeal on April 5. But before any ruling, the government on Tuesday filed a heavily redacted notice informing all sides of its intent to go ahead with a transfer in the required 72-hour window.
Its argument, delivered by an unnamed senior State Department official, is that Chutkan would damage U.S. diplomacy by preventing the transfer.
“It is vital diplomatically that the United States is able to follow through promptly on its commitment,” the diplomat wrote in a Monday declaration filed in court.
“A temporary restraining order or preliminary injunction prohibiting or delaying [redacted] would undermine the United States’ credibility with an important foreign partner that has agreed to this request… The Department of State must have the ability to make reliable representations and commitments when engaging directly with [redacted] on a matter of such sensitivity,” the diplomat argued, adding that additional legal delays “could adversely affect [the country’s] willingness to engage with the United States on some future detainee transfers.”
Since President Donald Trump took office, the U.S. has conducted no detainee transfers. Guantanamo Bay holds the same 41 detainees it had on Barack Obama’s final day in office.
The unnamed U.S. citizen “is challenging his transfer to the country under consideration presently,” confirmed Brett Max Kaufman of the American Civil Liberties Union, one of his attorneys.
“The Trump administration has been detaining this American citizen unlawfully for more than seven months, and forcibly rendering him to another country would be an unconscionable violation of his constitutional rights,” said Jonathan Hafetz, the lead ACLU attorney on the case.
“The government has no legal authority to detain this U.S. citizen in the first place, and it clearly lacks any legal authority to transfer him to the custody of another government. He should either be charged or freed, not handed over to an unnamed foreign government.”
Chutkan has yet to rule on the merits of the detention. At issue is the government’s claim that its war-making powers against ISIS extend to detaining the unnamed citizen, who surrendered to U.S.-allied proxy forces in Syria. But the government’s legal authorities for that war stem from two authorizations to use military force (AUMF) that long predate the existence of ISIS: the 2001 AUMF to avenge the 9/11 attacks; and even the 2002 AUMF for the invasion of Iraq.
Should Chutkan rule against the government, she would likely end up saying that the lack of its detention authority indicates that the AUMFs in question do not sufficiently authorize the war against ISIS. Some senators this week unveiled a new AUMF that would explicitly authorize that war.
Chutkan announced that she will hold a hearing on Thursday morning in D.C. on the potential transfer. It might portend a resolution to the first major detention case of the Trump era—without resolving its central questions.