Turning a Citizen Military Detainee Over to Another Country: The Valentine/Munaf Issue in Doe v. Mattis

In a prior post, I surveyed the affirmative reasons why a judge might prohibit a transfer of John Doe to Saudi or Iraqi custody. I discussed several possible arguments Doe might make, such as fear of torture, transfer-to-defeat jurisdiction, and proxy detention. I neglected to discuss a very significant issue, however: Might transfer be prohibited by the rule from the Supreme Court’s 1936 decision in Valentine v. United States ex rel. Neidecker? Or is it instead permitted, despite Valentine, by analogy to the court’s 2008 decision in Munaf v. Geren?

What is the Valentine rule?

Valentine concerned American citizens who sought to avoid extradition to France, where criminal charges awaited. America and France had an extradition treaty, but the court concluded that it was best read not to encompass a situation in which a state would be surrendering its own citizens. This was fatal, Chief Justice Hughes concluded, because the executive branch cannot extradite a citizen without a grant of authority to do so found either in treaty or statute. Hughes explained:

It cannot be doubted that the power to provide for extradition is a national power; it pertains to the national government, and not to the states. But, albeit a national power, it is not confided to the Executive in the absence of treaty or legislative provision. … Counsel for the petitioners do not challenge the soundness of this general opinion and practice. It rests upon the fundamental consideration that the Constitution creates no executive prerogative to dispose of the liberty of the individual. Proceedings against him must be authorized by law. There is no executive discretion to surrender him to a foreign government unless that discretion is granted by law. It necessarily follows that, as the legal authority does not exist save as it is given by act of Congress or by the terms of a treaty, it is not enough that statute or treaty does not deny the power to surrender. It must be found that statute or treaty confers the power. (299 U.S. at 8-9.)

Barring evidence that a transfer of John Doe would be pursuant to a statute or treaty, on this view, Valentine at first blush would seem to prohibit any transfer at all.

What is the Munaf exception?

But the Supreme Court recently, in Munaf v. Geren, demonstrated that there are limits to the Valentine rule. In the course of approving the transfer to Iraq of two U.S. citizens held by in American military custody there, the main issue involved the detainee’s fear of torture. In addition, however, the possibility of a Valentine problem naturally arose. As to that, Chief Justice Roberts wrote:

The habeas petitioners rely prominently on Valentine … But Valentine is readily distinguishable. It involved the extradition of an individual from the United States; this is not an extradition case, but one involving the transfer to a sovereign’s authority of an individual captured and already detained in that sovereign’s territory. In the extradition context, when a “fugitive criminal” is found within the United States, “‘there is no authority vested in any department of the government to seize [him] and surrender him to a foreign power,’ ” in the absence of a pertinent constitutional or legislative provision. But Omar and Munaf voluntarily traveled to Iraq and are being held there. They are therefore subject to the territorial jurisdiction of that sovereign, not of the United States. Moreover, as we have explained, the petitioners are being held by the United States, acting as part of MNF–I, at the request of and on behalf of the Iraqi Government. It would be more than odd if the Government had no authority to transfer them to the very sovereign on whose behalf, and within whose territory, they are being detained.

So we have here a doctrinal line illustrated by a pair of fact patterns. On one hand, the rule for extradition of citizens from within the United States seems clear enough: The government cannot do it at discretion or as an exercise of some inherent Article II authority, but rather, must have affirmative approval to do it by statute or treaty. On the other hand, that rule drops out at least where the person voluntarily goes abroad to a particular foreign country, is wanted by that country for prosecution based on conduct there, and the U.S. military is holding that person to begin with at the request of that country.

Do we need more information to decide on which side of the doctrinal line John Doe falls?

The essential question before Judge Chutkan now is whether the case should be governed by Valentine or Munaf. Finding the answer is complicated, however, by uncertainty regarding what sort of transfer the U.S. government actually has in mind.

Yesterday the government filed a sealed declaration elaborating its plans. We do not know what it contained, but we do know that Judge Chutkan said in court that the information provided was “deficient.” Spencer Hsu of the Washington Post reported:

Why might the declaration have been deficient?

It is easy to imagine that the declaration was hedged in its commitments, suggesting the possibility of transfers either to Saudi Arabia (which might or might not actually prosecute Doe) or to Iraq (which would likely only be involved if it intended to prosecute). These variations complicate the process of analogizing to or distinguishing from Valentine and Munaf.

If a prosecution in Iraq is in order, the facts become quite close to Munaf (yes, John Doe was captured in Syria rather than Iraq, but insofar as Iraq intends to prosecute him for his Islamic State activities it would still have a substantial sovereign interest of a kind that the United States itself routinely asserts). If instead the plan is to release him into Saudi custody, perhaps for some kind of custodial rehabilitation or perhaps some kind of home arrest-and-monitoring, the facts are muddier in cross-cutting ways. One might think that the overriding factor would be his Saudi citizenship (i.e., that the dual-citizenship angle standing alone is enough to distinguish Valentine, or at least that it becomes so when the dual-citizen has lived their entire adult life outside the United States and then later is captured on a foreign battlefield). But then again, the fact pattern at that point is far removed from both Valentine and Munaf, making it impossible to claim that precedent can drive the outcome.

How about requiring a further declaration once the facts clear up?

Spencer’s reporting indicates that someone during the hearing proposed the idea of 2-3 days advance notice pre-transfer, so that the court might resolve this doctrinal puzzle with concrete facts. This makes sense.

As noted above, the Justice Department objected that this would interfere too much with the diplomacy in question. No doubt it would cast some shadow on the negotiations. But John Doe is a citizen in novel circumstances. Adopting a rule that requires further explanation from the government once it is available, and reserving decision on the ultimate legality of a transfer until then, is not unduly burdensome in that context.