‘Next Friend’ Standing and the Unnamed Enemy Combatant

On the Oct. 17 episode of the Lawfare Podcast, Steve Vladeck and Benjamin Wittes sparred over how concerned one should be about the incommunicado detention in Iraq of a U.S. citizen as an enemy combatant. On Oct. 5, the American Civil Liberties Union (ACLU) filed a habeas petition on behalf of John Doe, the detained combatant, alleging that the detention was in violation of the Non-Detention Act (NDA). Vladeck and Wittes’ prediction that the government would contest the ACLU’s standing to litigate proved accurate when the government filed their first reply brief on Oct. 30. The reply brief argues, in large part, that the ACLU lacks standing because they have no prior relationship with Doe.

This case has the potential to be a landmark development in detainee litigation. That Doe has a right to habeas is long settled. But whether the ACLU has standing to file the petition on his behalf is an unsettled question.

The ACLU argues that it should be able to petition on Doe’s behalf as a “next friend.” Next friend standing allows third parties to litigate habeas petitions on behalf of the real party in interest, in that party’s absence. The doctrine makes frequent appearances in habeas litigation, but courts also carefully control who has access to standing as a next friend.

Habeas petitions have frequently been used to challenge U.S. detentions in the years since Sept. 11, 2001, but in previous litigation, the individuals who filed the petitions had close ties to the detainee(s). In Rumsfeld v. Padilla, the attorney to whom the court granted “next friend” standing had represented Jose Padilla in earlier proceedings. In Hamdi v. Rumsfeld I, the Fourth Circuit held that a public defender and private citizen, who admitted “no relationship[s] whatever with the detainee,” did not qualify for next friend standing. The court stated that the significant relationship requirement was dispositive. In subsequent litigation, Hamdi’s next friend was his father. However, according to Davis v. Austin, a familial relation does not guarantee next friend standing. ACLU v. Mattis presents an important question about the reach of 28 U.S.C § 2242: Is next friend status available to a party who has never met or spoken to a detainee?

Section 2242 of Title 28 dictates which actors may file a habeas petition. It states:

Application for a writ of habeas corpus shall be in writing signed and verified by the person for whose relief it is intended or by someone acting in his behalf.

It shall allege the facts concerning the applicant's commitment or detention, the name of the person who has custody over him and by virtue of what claim or authority, if known.

Historically, the Supreme Court has been unwilling to entertain next friend habeas petitions filed by parties without a “significant connection” to the imprisoned party. The Supreme Court in Whitmore required a next friend to have (1) an adequate explanation of why the real party in interest cannot file the petition himself; and (2) the third party “must be truly dedicated to the best interests of the person.”

Although a federal court may opt to interpret the language in Section 2242 broadly to justify a grant of standing, the ACLU faces an uphill climb. In particular, the ACLU faces difficulties meeting the Whitmore test, because it is unclear that the ACLU will be able to demonstrate that Doe is truly unable to act on his own behalf. In Al-Aulaqi v. Obama, the court held that “an individual’s actual incarceration is insufficient to show that [he] lack[s] access to the courts.” The premise of the ACLU’s petition is that Doe is incapable of acting on his own behalf, but it is not clear that the organization can demonstrate that.

The government’s brief informs the court that the International Committee of the Red Cross (ICRC) visited the detainee on Sept. 29 and Oct. 23. They state that the detainee was offered the ICRC’s assistance in contacting his family. The government argues that “[t]here is no reason to think that the detainee could not contact, through the ICRC, a relative who then could satisfy the requirements for next friend standing if the detainee desired to file a petition.” This suggests that either Doe has not asked the ICRC to contact his family or Doe’s family (who the government concedes would have next friend standing) have elected not to seek Doe’s release. These new facts directly cuts against the ACLU’s argument that Doe lacks access to the courts.

Further, there is also cause to question whether the ACLU will be able to show that it is “truly dedicated to the best interests of the person.” While the ACLU undoubtedly believes that it is acting in Doe’s best interest, it is a difficult proposition for the group to prove. The very nature of the petition suggests that the ACLU lacks the information that would allow them to pinpoint what Doe’s interests actually are. Indeed, there is some possibility that Doe might not currently believe that he is being held unlawfully or want to seek his own release.

The government’s reply brief is largely dedicated to the standing argument. The government points out that the ACLU has no method of discerning Doe’s wishes: “[the] ACLUF cannot provide the detainee with legal assistance, or serve as his next friend, because it has no idea what the detainee’s wishes are.” And that “there is a genuine danger here that ACLUF is pursuing its own agenda . . . rather than adhering to the detainee’s best interests.” The government correctly points out that the ACLU’s assertion that a significant relationship is not required, “directly contradicts the law applied in this District.” Yet, the circularity of the government’s position is rather clear; the ACLU can’t establish a relationship with Doe because they lack access, for which the government is to blame.

Steve Vladeck suggested that the court find a middle ground and issue an order for limited jurisdictional discovery on the question of whether Doe wishes to be represented. That is obviously within the power of the court and presents an opportunity to avoid the doctrinal trap of standing. The government urges that military detainees, “whose final disposition has not yet been determined” have never been held to have an “immediate right to access counsel.” The district court may be hesitant to grant discovery (no matter how limited) when the government has invoked concerns related to national security.

Absent any public record, it will remain difficult for any actor to know Doe’s will. Whitmore requires the a “significant relationship” between the petitioner and detainee and the ACLU cannot, as of now, demonstrate that exists. The limitations of next friend standing are specifically designed to exclude “intruders or uninvited meddlers, styling themselves next friends.”

The court would have to craft a new exception to next friend jurisprudence to grant the ACLU standing in this case. It appears that the government may have strong precedential and factual arguments against allowing the ACLU to litigate the case.

After the Oct. 30 briefing, the ACLU faces three potential outcomes.

1. The court could find, in light of the ICRC’s involvement and ability to contact next-of-kin, that Doe and his next friends do not wish to challenge his detention;
2. The court could find that the plain language of Section 2242 authorizes the ACLU to act as a next friend, and the case moves forward; or
3. The court could find, without addressing the ICRC’s involvement, that the ACLU lacks standing and dismiss the petition.

The first option would be a routine resolution to the jurisdictional question; the second would appear to require the district court to craft an exception to existing next friend doctrine; and the third scenario would entrench this case’s status as groundbreaking and presents a disturbing possibility. If the government can prevail on the Section 2242 standing argument simply because we do not know who Doe is, then it will have gained a significant and alarming new power. It would allow the government to skirt habeas corpus simply by keeping a U.S. citizen incommunicado (and denying them access to the ICRC). Such a holding would appear to implicate the novel (and difficult) question of whether next friend standing is constitutionally required under the suspension clause.

If the government can thwart Section 2242 standing by such an action, then it has little incentive to disclose the identity of any U.S. citizen held overseas as an enemy combatant. While Doe has been granted access to ICRC staff, that is “not a regularly scheduled event” and only takes place “absent a need to restrict access due to military necessity.” If the district court holds that the ACLU lacks standing, it should make clear that if the ICRC had not been granted access that this would be a different case.

Time may also play a factor: while the ACLU may lack next friend standing today, it is not necessarily true that it would lack standing indefinitely. Over time, the ACLU may have a more plausible claim that Doe is incapable of accessing the courts and that it does represent his best interests. But it is unclear how much time would have to elapse for a third party to gain next friend standing where it previously did not enjoy it.

Steve Vladeck and Bobby Chesney made the important point that the worst case scenario would be for this litigation to become an adjudication of the merits of the AUMF as an authorization for the war against the Islamic State. It remains possible that the government will transport Doe to the United States for prosecution. Such a result would, in all likelihood, present the lowest risk of collateral damage for the government. In all likelihood Chesney is correct that the case will resolve itself in a manner that does not break new ground for detainee litigation.

If the ACLU lacks standing today and Doe’s detention violates the NDA or the Due Process Clause, we face the reality at the core of why this litigation matters. Not all violations of the statutes or even the Constitution, no matter how egregious, have remedies. It has never been true that a violation must be accompanied by concurrent remedy, as can be seen in the respective contexts of sovereign immunity, political questions and state secrets. A lack of standing in Doe’s case would not be the first time that a Constitutional or statutory violation—if that’s what his detention represents—went uncorrected because an action lacked the proper plaintiff (as evidenced by United States v. Richardson).

If the court ultimately rules against the ACLU on scenario three, the executive branch will be able to detain Doe until the end of the conflict of which he was a part. Of course, such a policy would generate pushback both in Congress and abroad. The court has the capacity to mitigate the implications of, or to simply avoid, a dismissal of the ACLU’s petition for want of standing. But there is also a real chance that the case’s unique facts could lead it to become the most important detainee habeas case yet.