Trump administration seeks to transfer unnamed enemy combatant within 72 hours

The Trump administration intends to transfer a U.S. citizen held in Iraq as an enemy combatant for more than six months to an unnamed foreign country within 72 hours, it revealed in a court filing on Tuesday afternoon.

The detainee has declined to consent to the transfer, according to the government, and a hearing has been set for Thursday morning. 

The government did not name the country, but a U.S. official confirmed to The Hill that officials are seeking to transfer him to Saudi Arabia. 

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The federal disclosure came only under court order. In late December, U.S. District Judge Tanya Chutkan had ordered that the government must provide Doe with 72 hour’s notice if it was going to pursue such a transfer, in order to allow him to challenge the move in court — a restriction that the government has itself challenged.

Details of the transfer agreement remain unknown. 

In its heavily redacted filing, the Trump administration cited “extensive diplomatic discussions” regarding the transfer and urged the court not to delay it.  

“Now that these intensive efforts have resulted in a commitment to transfer [redacted], it is imperative that the transfer occur quickly and smoothly,” an unnamed State Department official wrote in an attached declaration. “A temporary restraining order or preliminary injunction prohibiting or delaying [redacted] transfer would undermine the United States’ credibility with an important foreign partner that has agreed to this request … including as a demonstration of its commitment to and value of [redacted] bilateral relations with the United States.”

The State Department, which conducted the negotiations, “must have the ability to make reliable representations and commitments when engaging directly with [redacted] on a matter of such sensitivity,” the official continued.

Any delay could adversely affect the unnamed country’s willingness to negotiate with the United States over future detainee transfers, the official said.

Captured by Syrian forces in mid-September while apparently fighting with the Islamic State in Iraq and Syria (ISIS), Doe was then turned over to the U.S. military, which has maintained custody of him while the government wrestles with what to do with him. He has been read his Miranda rights, according to court filings, and has not been interrogated for law enforcement purposes since. It is unclear if he’s been questioned further by the military.

Doe disputes that he traveled to Syria to join up with ISIS. 

His case has stymied the Trump administration, which reportedly does not believe it has enough evidence to try him in criminal court but doesn’t want to simply release him.

The American Civil Liberties Union (ACLU) has been representing Doe as he challenges his more than six-month detention in U.S. court. The case has the potential to undercut the delicate legal framework that both the Trump and Obama administrations have used to frame the military effort against ISIS.

In order to classify a person as an enemy combatant, the government must be able to prove that the detainee is a fighter for an enemy force with whom the U.S. is in a state of armed conflict. Both the Trump and Obama administrations have claimed that ISIS is an “associated force” covered by the military authorization that Congress passed in 2001, after the 9/11 attacks.

But the courts have not yet weighed in on that rationale, and both conservative and liberal legal analysts say the government is on risky legal footing if challenged.

Senate Foreign Relations Committee Chairman Bob Corker (R-Tenn.) on Monday introduced legislation updating the authorization for use of military force (AUMF) that would resolve the discrepancy, but its prospects are seen as dim on Capitol Hill. Congress has tried and failed for years to update the AUMF.

Separately, the government is also challenging Chutkan’s order placing the 72-hour warning requirement. A three-judge panel in the D.C. Circuit heard oral arguments in the case last week but has not yet issued a ruling.

The Justice Department had sought to avoid providing the 72-hour notice for two unnamed countries that it said “may ultimately take custody of” Doe — expected by outside experts to be either Saudi Arabia, where he holds his second citizenship, or Iraq.

There are some limits on where the U.S. can transfer detainees. It can’t send them to a country where there is a reasonable expectation that they will be tortured, for example.

In past transfer cases from the U.S. detention facility at Guantánamo Bay, the government has also hammered out very specific agreements related to how the receiving country’s intelligence services would monitor the transferred individual. In one 2004 case involving a U.S. citizen, the detainee, Yaser Hamdi, renounced his U.S. citizenship as part of the transfer. Hamdi had access to a lawyer.

The U.S. has sent detainees to Saudi Arabia in the past, where there is a government-run rehabilitation program for extremists that was started in the mid-2000s. The flagship site sits on a former resort property in Riyadh and boasts a swimming pool and art therapy for detainees referred to as “beneficiaries.”

The government has refused to identify Doe, other than to confirm his detention and his citizenship. Jonathan Hafetz, the ACLU lead attorney on the case, has confirmed that he was born on U.S. soil and speaks English.

The New York Times has reported that Doe was born in the United States to visiting Saudi parents, citing officials familiar with the case — but little else is known.

The 72-hour clock started at 9:30 p.m. Monday, when the government issued its under-seal notice. 

Updated at 5:49 p.m.