Judge Chutkan’s Detainee-Transfer Ruling and the Dual-Citizenship Complication

On Tuesday, I wrote about the constitutional* question raised the government’s interest in transferring John Doe—a dual Saudi-U.S. citizen in U.S. military custody in Iraq—to another state. The American Civil Liberties Union has asked Judge Tanya Chutkan to enjoin any such transfer, arguing that the Supreme Court’s Valentine v. United States decision prohibits involuntary transfer. In my previous post, I explored the extent to which the Munaf v. Green exception to that rule might apply, concluding that Doe’s circumstances likely fall into a grey zone (to borrow a phrase) between those two precedents. On that basis, I supported the idea that the court should order the government to give advance notice once it sorts out whether and how it plans to transfer Doe.

Judge Chutkan has now done exactly that. In an opinion issued yesterday, Judge Chutkan has ordered the government to give 72-hours notice before attempting to transfer Doe.

So far so good. I am concerned, however, by the way in which the opinion discusses Valentine and Munaf.

Judge Chutkan went out of her way to emphasize that she was not actually deciding the transfer issue at this stage. Because the request for preliminary injuctive relief required some assessment of the merits of the issue, however, she could not entirely avoid it.

The judge acknowledged that Munaf represents an exception to the Valentine rule, but decided to read that exception as strictly limited to the particular facts of that case:

Nothing in Munaf … restrains this court from restricting the Defense Department’s ability to transfer Petitioner in this case. In Munaf, two U.S. citizens—charged by the Iraqi government for crimes committed on Iraqi soil—were detained in Iraq by U.S. military forces as part of a multi-national force acting on behalf of the Iraqi government. The detainees filed petitions for writs of habeas corpus, seeking to enjoin the multi-national forces from transferring them to Iraqi custody. The Supreme Court held that the district court did not have the power to enjoin the transfers, explaining that “[h]abeas corpus does not require the United States to shelter . . . fugitives from the criminal justice system of the sovereign with authority to prosecute them.” Here, unlike in Munaf, there is no evidence in the record that Petitioner: (1) committed crimes in violation of the laws of another country; (2) is facing prosecution in another country; or (3) is being held on another country’s behalf. Therefore, this case does not implicate another country’s “sovereign right” to punish offenses within its borders. (slip op. at 5) (citations omitted).

This may well be the right answer in the end, but I’m skeptical for a few reasons—one involving potential changes in John Doe’s fact pattern that may bring it within the scope of Munaf after all, and the other involving the possibility that the Munaf exception should be extended in a limited way.

First, the Munaf rule might actually apply directly here: If Iraq decides it wishes to prosecute John Doe (just as it has a vast number of other non-Iraqi Islamic State members), and the U.S. government wants to turn him over as a result, the fact pattern will become very similar to those in Munaf. The key remaining difference would be that Doe allegedly traveled to Syria rather than Iraq, and served as an Islamic State fighter in Syria rather than in Iraq itself. But I’m doubtful this distinction should matter for purposes of applying Munaf. The point of the territoriality discussion in Munaf is that territoriality made it perfectly clear that Iraq was within its sovereign rights to assert prosecutorial jurisdiction over the individuals at issue in that case. The same would be true with respect to John Doe or any other Islamic State member who happened to be captured in Syria rather than Iraq, though obviously the explanation for the propriety of Iraq asserting extraterritorial criminal jurisdiction in that manner is more complicated. The bottom line, at any rate, is that the United States routinely asserts extraterritorial criminal jurisdiction in exactly that sort of circumstance, and could hardly deny the sovereign right of Iraq to do the same.

Of course, having a legitimate sovereign interest in prosecution on the part of the receiving state cannot be enough without more to overcome the Valentine rule (France had a legitimate sovereign interest in prosecution against the U.S. citizens at issue in Valentine itself, after all), the same additional factors that tipped the scale in Munaf—factors that are not emphasized in Judge Chutkan’s opinion but certainly mattered in Munaf, including the fact that the persons at issue were not in the United States to begin with and instead had voluntarily gone abroad and were then captured overseas—are present with John Doe as well. Indeed, the John Doe fact pattern if anything seems a stronger case for the government, in that Doe may well have spent most of his life outside the United States.

Second, this fact pattern may warrant an extension of Munaf: My second concern with Judge Chutkan’s analysis is that it does not address the possibility that a separate exception to Valentine should apply in the unusual circumstance in which the person in question is not just a U.S. citizen but also a citizen of the country to which he would be transferred—a possibility that has been referenced frequently in media reports about the possible fate of John Doe.

Standing alone, of course, this could hardly be a basis for an exception to Valentine. But combined with other factors apparently present here—capture overseas in a combat setting, and a complete lack of other ties to the United States—this at least presents a question that will require serious consideration if and when the government decides to attempt a transfer to Saudi Arabia.

To sum up: these are all good reasons why Judge Chutkan was smart not to predetermine the transfer issue altogether, and instead just require advance notification so the particular circumstances can be considered at the time.

* I describe Valentine as a constitutional rule because the discussion by Chief Justice Charles Hughes appears to derive that doctrinal rule from both separation-of-powers principles and individual-liberty principles (with the latter presumably rooted in the Fifth Amendment due process clause, though I don’t think Hughes says so expressly).