John Doe v. Mattis

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.

In the first order, the court required the government to give 72 hours' notice before transferring Doe to the custody of any *4other 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 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, 128 S.Ct. 2207, 171 L.Ed.2d 1 (2008) ; Wilson v. Girard , 354 U.S. 524, 77 S.Ct. 1409, 1 L.Ed.2d 1544 (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 *5for the citizen to contest the factual determination that he is an enemy combatant fighting on behalf of that enemy. See Hamdi v. Rumsfeld , 542 U.S. 507, 517, 533, 124 S.Ct. 2633, 159 L.Ed.2d 578 (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, 124 S.Ct. 2633 (plurality); id. at 558-59, 124 S.Ct. 2633 (Scalia, J., dissenting). In that "surely ... rare" circumstance, id. at 571 n.3, 124 S.Ct. 2633 (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, 124 S.Ct. 2633 (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, *6including American aid workers and journalists. See U.S. Dep't of State, Bureau of Counterterrorism, Country 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.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.

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.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 *7government'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, 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.

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, 129 S.Ct. 365, 172 L.Ed.2d 249 (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, 129 S.Ct. 365. 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.

*81.

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 26-27, 38-39. 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.

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, 73 S.Ct. 135, 97 L.Ed. 146 (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, 57 S.Ct. 100, 81 L.Ed. 5 (1936) ; Collins v. Loisel , 259 U.S. 309, 316-17, 42 S.Ct. 469, 66 L.Ed. 956 (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, 128 S.Ct. 2207, which is itself predicated on Wilson v. Girard , 354 U.S. 524, 77 S.Ct. 1409. 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, 77 S.Ct. 1409.

*9The Army agreed to relinquish Girard to Japanese custody for pretrial detention. Id. at 526, 77 S.Ct. 1409. 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, 77 S.Ct. 1409. 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, 77 S.Ct. 1409. In Girard's case, the United States had done just that. Id. at 529, 77 S.Ct. 1409. 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, 77 S.Ct. 1409. 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, 128 S.Ct. 2207. 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, 128 S.Ct. 2207 ; see id. at 681, 683, 128 S.Ct. 2207. 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 the Due Process Clause. Id. at 692, 128 S.Ct. 2207. The Court rejected their arguments and allowed the military to relinquish them to Iraqi custody. Id. at 705, 128 S.Ct. 2207.

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, 128 S.Ct. 2207 (quoting Wilson , 354 U.S. at 529, 77 S.Ct. 1409 ). That sovereign entitlement, the Court observed, was one that the Court had long and repeatedly recognized. Id. at 694-95, 128 S.Ct. 2207 (citing, e.g. , Schooner Exchange v. McFaddon , 11 U.S. (7 Cranch) 116, 3 L.Ed. 287 (1812) ; Neely v. Henkel , 180 U.S. 109, 21 S.Ct. 302, 45 L.Ed. 448 (1901) ; Kinsella v. Krueger , 351 U.S. 470, 76 S.Ct. 886, 100 L.Ed. 1342 (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, 128 S.Ct. 2207. The Executive thus could transfer the petitioners to Iraqi custody without violating the Due Process Clause. Id. at 699-70, 128 S.Ct. 2207.

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,