The Trump administration is seeking to forcibly release into Syria a U.S. citizen held in military detention as a suspected ISIS fighter for nine months, it revealed in court documents filed Wednesday.
The American Civil Liberties Union (ACLU), which is representing the man referred to as John Doe, called the decision a “death warrant” for its client and is opposing the release.
Absent court intervention, the government will move to transfer him to Syria from Iraq, where he is currently held, no sooner than Saturday night. The Defense Department offered Doe two release options, either in a town or outside an Internally Displaced Person camp, it said in its filings.
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But, “[Doe] did not identify a preference between the two locations and would not agree to the release as Respondent described it,” the government said in its filing.
“Accordingly, out of an abundance of caution, the Department is filing this Notice of its intent to release Petitioner in the town specified in the Declaration no sooner than 72 hours hence.”
His planned release — which appears likely to be at least delayed by an ACLU challenge — was announced just two weeks before a federal court is scheduled to hold a hearing on whether the government is holding Doe legally in the first place.
That case, before U.S. District Court Judge Tanya Chutkan, could result in a potentially historic ruling on the legal underpinnings of the war against the Islamic State in Iraq and Syria (ISIS).
Critically, Doe argues that because ISIS is not explicitly covered under the current congressional authorization for the use of military force — a subject of intense debate across multiple administrations — he cannot legally be held as an enemy combatant.
The federal courts have not weighed in on that issue and a ruling against the government’s longstanding interpretation that ISIS is an “associated force” of al Qaeda could upend the entire legal basis for military action against the terror group.
Doe also maintains that he went to Syria to document the violence there, not to join ISIS.
The hearing before Chutkan is scheduled for June 20. It was not immediately clear whether it will proceed in light of this development.
The Trump administration has been seeking to rid itself of Doe for months.
Earlier this spring, a federal appeals court blocked the government from transferring Doe into the custody of Saudi Arabia, where he also holds citizenship, arguing that it lacked sufficient legal basis to do so against his will.
Officials have long claimed that they do not have enough evidence to charge Doe in federal court — the most obvious solution that both the Obama and Trump administrations have leveraged with U.S. persons suspected of aiding ISIS.
But the details of Doe’s story have left some legal analysts surprised that the government doesn’t believe it has sufficient evidence to bring basic terrorism charges against him.
According to the government, Doe attended ISIS training in Syria starting in March 2015. There, he swore allegiance to a deputy of ISIS’s leader, Abu Bakr al-Baghdadi, a man named Abu Hafs al-Maghrebi.
He was assigned to be a fighter in the Zarqawi Brigade, a military unit that “guard[ed] the front lines” in Syria, where he procured fuel for ISIS vehicles, handled expenses and “performed other administrative tasks.” Later, he was tasked with guarding the gate of an ISIS oil field and monitoring personnel who worked on ISIS’s heavy equipment.
There is no public evidence that he took up arms on behalf of ISIS.
Ultimately, Justice Department lawyers say, Doe worked for ISIS for about 2 1/2 years — “until air strikes and other military offensives against [ISIS] forced him to flee.” Syrian forces picked him up at a checkpoint as he was trying to escape Syria into Turkey. He identified himself as an American and said he wanted to turn himself in.
He was dressed in a style “typical of an [ISIS devotee],” the government claims, and “identified himself as ‘daesh’ — another word for ISIS.”
And he was found carrying thumb drives containing ISIS personnel spreadsheet and “military style handbooks” about bomb building, interrogation techniques and weapons handling.
Some legal analysts have suggested that the release in Syria could potentially raise the specter of a clandestine transfer operation.
Doe could walk free — or he could be immediately snatched up by security forces and transferred to Saudi Arabian custody anyway, a move that could suggest at least the appearance of behind-the-scenes coordination with the U.S.
But given that the cross-border transfer would take place against Doe’s will, his likely challenge to the decision could turn on some of the same legal issues that led the appeals court to block his transfer to Saudi Arabia.
The ACLU calls the proposed plan to release Doe into Syria “a disgraceful way to treat an American citizen.”
“The government has effectively admitted that it has no reason to continue detaining our client and that he does not pose a threat,” the lead attorney on the case, Jonathan Hafetz, said in a statement.
“But, instead of offering a safe release, they want to dump an American citizen onto the side of the road in a war-torn country without any assurances of protection and no identification.”