Thanks to the intervention of a federal judge, the Trump administration has been prevented for now from transferring to Saudi Arabia a U.S. citizen seized in Syria and suspected of fighting for Islamic State. Instead of seeking to overturn the ruling by U.S. District Judge Tanya S. Chutkan, the administration should either charge the man with a crime or give him his freedom.
The man, who is known in court documents as John Doe, also holds Saudi citizenship. He surrendered to a Syrian militia backed by the United States in September and was turned over to the U.S. military. It declared him an “enemy combatant” and placed him in a military prison in Iraq, but apparently it lacks the evidence necessary to charge him with a crime. According to his lawyers, Doe claims he was kidnapped by Islamic State and denies fighting alongside the militants.
Government lawyers told the court that the decision had been made to transfer Doe to Saudi Arabia only after “extensive” diplomatic discussions.
Apparently the U.S. government sees moving Doe to another country as a convenient way to resolve the dilemma created by the difficulties of charging him with a crime or, alternatively, imprisoning him as an enemy combatant, which also would eventually require the government to defend its position in court. That’s because in a 2004 decision called Hamdi vs. Rumsfeld, the Supreme Court ruled that a U.S. citizen held as an enemy combatant must have a right to challenge his confinement.
Exiling a U.S. citizen without due process is just as much a violation of due process as imprisoning him without trial.
But exiling a U.S. citizen without due process is just as much a violation of due process as imprisoning him without trial. The “solution” of handing Doe over to Saudi Arabia against his will is no solution at all. As Chutkan remarked during a hearing Thursday: “It’s not release if you’re simply giving him over to another jailer.”
In opposing the transfer, the American Civil Liberties Union, which is representing Doe, made two principal arguments: that his detention and possible transfer are illegal because the government lacks the legal authority to wage war on Islamic State, and that regardless of the legality of the war, Doe’s forced transfer to another country in the absence of any criminal charges against him there is a violation of his constitutional rights. (His case differs from others in which the courts have upheld turning over a U.S. citizen to a foreign country where charges were pending or there was an extradition agreement.)
“The government has no legal authority to detain this U.S. citizen in the first place, and it clearly lacks any legal authority to transfer him to the custody of another government,” Jonathan Hafetz, an attorney for the ACLU, said.
The first assertion is more debatable than the second. Congress has been remiss in failing to explicitly authorize the war against Islamic State undertaken by former President Obama and continued by President Trump. This page often has criticized the idea that Authorizations for Use of Military Force passed in 2001 and 2002 — one approved in response to 9/11, the other designed to put pressure on Saddam Hussein — can be stretched to justify current military operations. We continue to believe that Congress needs to update its authorizations for military force.
But even if one accepts that the war against Islamic State is on sound legal footing, the proposed transfer of Doe is objectionable. An American citizen suspected of taking up arms on the wrong side is still entitled to due process (and he doesn’t forfeit any of his constitutional rights because he has citizenship in a second country).
And there are ways to prosecute Americans who aid the enemy. In the Hamdi case, the late Justice Antonin Scalia pointed out that, in addition to treason, federal law criminalizes “various acts of war making and adherence to the enemy.” U.S. citizens also can be charged with other criminal offenses, including providing material support for terrorism.
If the government can establish that Doe violated any of these laws, it should file charges against him in federal court, where it successfully has prosecuted several terrorism cases. If it is unable to make a case, it should release him — and give up the idea of handing him off to “another jailer” in another country.
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