In September 2017, the Syrian Democratic Forces (SDF) captured a U.S. citizen fleeing ISIS in Syria. After threatening to kill him, the SDF transferred the individual, who has remained an unnamed John Doe, to U.S. military custody. The United States claims Doe was an ISIS “fighter” and has held Doe in a U.S. facility in Iraq for the past 10 months.
Doe has not been charged with a crime, nor has he been given the opportunity to challenge his status as an enemy combatant. Following media reports of his capture in Syria, the America Civil Liberties Union (ACLU) filed a habeas corpus petition, challenging Doe’s denial of counsel and arguing that his protracted detention lacked a legal basis.
Since the habeas petition was filed in October, the court has yet to evaluate the legal and factual basis for Doe’s detention; instead, the government has repeatedly forestalled and obfuscated the adjudication of the merits.
The government first challenged the ACLU’s right to represent Doe as his attorney. After the court found for the ACLU, the government then attempted to involuntarily transfer Doe to the custody of a third country, reported to be Saudi Arabia. After the government appealed a decision in Doe’s favor, the D.C. Circuit Court ruled that the government had no legal authority to forcibly transfer Doe to prolonged detention in Saudi Arabia. The majority looked to Supreme Court guidance that in balancing executive power to make military judgements, it is vital not to give “short shrift” to “the privilege that is American citizenship.”
Then, two weeks before the scheduled hearing on the merits of Doe’s continued detention, the government announced a new plan. This time they wanted to abandon Doe in Syria, in the war-torn region he had been fleeing. At the July 13 hearing, the ACLU argued that Syria is a dangerous war zone and that without official documents authorizing his travel, Doe would be in near certain danger. While the government conceded that they are legally obligated to provide for the safe release of detainees, they maintained that the pocket of Syria where they would leave Doe was in fact safe. The government argued that the court should defer to the Department of Defense’s expertise and evaluation of the area.
But as the ACLU presented, the Department of Defense is alone in its assessment. The Department of State has repeatedly warned that Syria is unsafe for U.S. nationals. In one such advisory, the Department of State cautioned that “no part of Syria should be considered immune from violence, and the potential exists throughout the country for unpredictable and hostile acts, including kidnappings, sniper assaults, terrorist attacks, small arms fire, improvised explosives, artillery shelling, airstrikes, the use of chemical weapons, large- and small-scale bombings, as well as arbitrary arrest, detention, and torture.” In an earlier advisory, the Department of State advised travelers to Syria to “draft a will,” “leave DNA samples with your medical provider,” and “[d]iscuss a plan with loved ones regarding … funeral wishes.” Moreover, the United States lacks the ability to assist citizens in the country, closing its embassy in Syria in 2012 due to the violence and instability. And, the Department of Homeland Security (DHS) has even stated that Syria is unsafe for Syrian nationals to return home, due to the “brutal violence” and “serious threat” to personal safety.
As the ACLU rightly pointed out during the hearing, the markedly different official portrayals call into question the reliability of the Department of Defense’s assertions that Syria is a safe place to send Doe. Further, the warfare in Syria is fluid and unpredictable, especially given President Trump’s alleged plan to withdraw U.S. forces. To return Doe to the very dangerous situation he was attempting to flee hardly seems safe.
And it is not as if stranding Doe in Syria is the only option. The U.S. government could transfer and release Doe in a country that he agrees is safe, or they could send him to the United States, either for release or criminal prosecution. The government could also simply open the jailhouse door and safely release Doe in Iraq. During the hearing, the government alleged that the Iraq alternative would be too resource intensive, especially given their recent elections this past May. But this does not explain the U.S. failure to act for the 8 months prior to the Iraqi elections. Further, the United States, and it’s roughly 5,000 troops in Iraq, continues to collaborate with the new Iraqi government; for example, just last month, the countries opened a new shared base near the Syrian border. Choosing to abandon a citizen in Syria represents a lack of political will, and not a dearth of alternatives.
So how much should courts defer to executive branch assessments about what is safe? The government argues for “wide deference,” especially given that the case implicates both national security and foreign relations — areas that courts have traditionally recognized as those where executive power is at its highest ebb. In deciding to allow President Trump’s travel ban, Chief Justice John Roberts looked to the deference “traditionally accorded to the President.” And outgoing Justice Anthony Kennedy went a step further, questioning whether proceedings could even continue in the travel ban case “in light of the substantial deference that is and must be accorded to the Executive.” When the courts have failed to act as a check on executive power, like when the Supreme Court upheld Japanese internment in the Korematsu case, there have been severe consequences for individuals and serious infringements on civil liberties. With the Supreme Court unwilling to consistently meaningfully review the President’s actions, the government is emboldened not only to continue but also to expand its claims of deference.
If the Senate approves President Trump’s nomination of Judge Brett Kavanaugh to the Supreme Court, it will likely make things worse. Judge Kavanaugh has long cited what he deems “bedrock principles of judicial restraint” in cases involving foreign policy. In fact, Judge Kavanaugh upheld a statute as constitutional, even though it barred courts from reviewing an executive branch decision that could send an American citizen to torture abroad. He even allowed national security deference to the executive branch to protect FBI agents from liability, notwithstanding that they had unlawfully abused and detained a foreign national. With Judge Kavanaugh expected to soon become Justice Kavanaugh, judicial oversight of national security cases may continue to erode, taking due process and civil liberties along with it.
A lot is at stake in the Doe v. Mattis case. Should the government ultimately prevail, the United States will have abandoned one of its own citizens in arguably the most treacherous place on earth. If the government has evidence that Doe broke the law, then it should charge him with a crime and grant him his day in court. But to simply abandon a U.S. citizen in a war zone amounts to an egregious violation of international law and the Constitution. Such an outcome would create a dangerous precedent, whereby the U.S. government can pick up citizens abroad, detain them indefinitely, and then abandon them in a violent and volatile region, without legal authority, without regard for their fate, and without courts being able to intervene. Instead of such expansive deference, the judicial system must fulfill its proper role and actively check the executive branch, ensuring its power does not get out of hand.