What Should Be Done With the American ISIS Fighter?

This article first appeared on Just Security.

Three quick observations on the U.S. citizen ISIS Detainee.

1. Like Bobby Chesney, I fully expected that “John Doe”–the U.S. citizen who the military currently is detaining in Iraq–would be “en route to the U.S. to face civilian prosecution . . . within a week or so.”

Turns out that’s probably not in the cards: As Eric Schmitt and Charlie Savage report, although the government apparently has sufficient evidence to conclude that Doe is part of ISIS forces, it does not yet have sufficient admissible evidence to prove that fact in an Article III trial (which is presumably what they’d need to show to secure a material-support conviction).

Of course, this would ordinarily simply counsel in favor of detaining Doe in military custody for the duration of hostilities with  ISIS, e.g., in the brig in Charleston.

But such detention would only be legal if, as the Executive believes, the 2001 and/or the 2002 AUMF authorizes the use of force against  ISIS–an unresolved question that no courts have yet considered, but that a habeas court would have to resolve if the military were to keep Doe in military detention. (For a fuller exposition of the government’s arguments under the two AUMFs, see this post.)

I do not mean to suggest, in the slightest, that such long term detention would be a wise idea–indeed, I think it certainly would not be, and I agree with President Obama’s policy that U.S. citizens would not be put in long term detention. I was only referencing the legal options.

The government understandably does not relish the idea of Doe’s habeas petition being the test case for resolving that major question on which so much turns. Hence, their quandary: What to do with him ?

GettyImages-497398180 Suspected ISIS fighters are detained by Kurdish Peshmerga forces after they fled their frontline village to a Kurdish-controlled area on November 16, 2015 to Sinjar, Iraq. John Moore/Getty

2. According to Schmitt and Savage, Doe was read his Miranda rights after the intel-gathering interrogation was completed. Presumably he has requested counsel (although we can’t be certain of that). If so, what are the constitutional limits on how long the military can prevent Doe from contacting counsel and from accessing the habeas court?

In her controlling opinion in Hamdi , Justice O’Connor acknowledged that “initial captures on the battlefield need not receive the [adversarial] process we have discussed here [that the Due Process Clause requires]; that process is due only when the determination is made to continue to hold those who have been seized.”

Surely, however, the Executive cannot extend that period indefinitely by the simple expedient of delaying its own determination of whether it will “continue to hold” the detainee.

Apart from that passage in Hamdi , I don’t believe there’s much in the way of extant law on the question of how long is “too long” before a U.S. citizen military detainee overseas must be afforded access to a lawyer and an opportunity to petition a habeas court–presumably it’s a case-specific inquiry.

The ACLU’s new suit on Doe’s behalf, for instance, states generally that “[t]he Fourth Amendment requires that individuals seized by federal officials, including but not limited to U.S. citizens seized overseas, be brought promptly before a judicial officer to establish the basis for their detention,” without specifying what duration is not “prompt.” Cf. Federal Rule of Criminal Procedure 5(a)(1)(B) (“A person making an arrest outside the United States must take the defendant without unnecessary delay before a magistrate judge.”).

Whatever the answer to that question might be, however, I’d think that, at a minimum, the government must have a good reason for denying access to counsel and court. And, whatever else might be true, surely “we haven’t yet been able to develop an Article III case and we prefer not to test the habeas question” is not a sufficient justification for denying such access.

Whether the government has any other reasons for refusing to allow Doe access to counsel (assuming that’s what’s happening here) remains to be seen.

3. In order to extricate itself from its Scylla/Charybdis quandary, where neither prosecution nor military detention is ideal, why hasn’t the government simply used one of two possible transfer dispositions?

First, presumably it could transfer Doe to Iraqi military custody. Iraq detains tens of thousands  ISIS forces (see ICRC Iraq Activity Report here )–why not Doe?

Alternatively, the government might be able to turn him over to his country of residence–according to Schmitt and Savage, that’s some unnamed Middle Eastern nation–where he could be subject to surveillance and/or legal process, if applicable. (Of course, that option would not be feasible if, e.g., Doe resides in Syria.)

The Schmitt/Savage story does not explain why these options have not (yet) been used. I wouldn’t be surprised if that’s how this case is ultimately resolved–perhaps quickly, once a federal judge gets hold of the matter.

Marty Lederman is a professor at the Georgetown University Law Center.

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