the first is judge henderson will give full consideration to this matter based on the briefing that's been submitted by the parties and the audio recording of the argument we have today and the second announcement is that we'll have a public session which we're about to embark upon now in which they'll be no reference made to the sealed material which is the identity of the two potential receiving countries as was discussed in the public briefing or any discussion that could reveal the identity of those and then we'll retire into a closed session and w countries to the sealed proceeding position or in this case is a citizen of both the united states and saudi arabia who chose to travel to eisele held territory spanning syria and iraq where he was captured on a battlefield by the syrian democratic forces petition er told those forces that he is a u s citizen and they transferred him to u s forces which now seek to potentially transfer petitioner again those efforts are hindered however by a sweeping injunction that requires seventy two hours notice to the district court before relinquishing custody of petitioner to any country the government has come to this court seeking the narrowest possible relief from that injunction that can still protect its critical interests in conducting foreign affairs and in military operations how is a junction requires know the city's we are i think it's we've been because it applies to every country in the world i think the notice requirement is this court recognized in canada to directly interferes with the ability of the united states to engage in diplomatic discussions with other countries because any sort of agreement that we were able to reach with another country would necessarily be contingent on possible post agreement litigation in the district court possibly this court and possibly the supreme court and so the  reason why the notice requirement is a issue is because it interferes with that process and i think is petitioner himself recognizes and can be to i think holds there there cannot be a notice requirement unless there is authority to under to enjoin the underlying transfer did you argue below that to the extent that you're seeking notice it should only be with respect to certain countries and others less in your position below legitimate interest in obtaining custody and we identified one country in the district court below that we can talk about more in the in the sealed proceeding but our legal rule was the same legal rule we're talking about here which is that there needs to be a direct and legitimate interest on the part of the receiving country in order for the transfer to be allowed and so we asked this record to do was to you know not include now that it's a little complicated as the petitioner asked for a transfer injunction not a notice and junction so most of the briefing in discussion was focused on an injunction against the ultimate transfer but we asked the district court to do is exclude a country that has a legit any country that has a legitimate interest in petition or in particular one country that we can talk about and so i think we fairly presented our our narrow position to the district court  this court we've tried to narrow it even further and congress has it more but by limiting it to the two countries that we're going to talk about and i think it's relatively clear that the court cannot in joint transfer to either of those countries here united's so guys if i should   engine or transfer so let's let's just take that and given that that's the yes right general principle under which we're operating today so is it your submission that the authority to transfer is one that the government has without any judicial review of the legality of the authority to transfer so that's why would i would disagree with your premise judgment of awesome because as i read that passage in omar there's no commas in the passage and so what the court i think was saying is effect let's just assume ok present purposes that we disagree with you on that and that they're destructive and that americans whatever and others in u s territory so if that's the understanding then what's your position as to that is your position just th wrong and it's not correct or is it that notwithstanding no i don't yours we're still in compliance and you know i think even if that is what omar meant and that is the law that the united states still has the authority to transfer petitioner and i think it's the same authority article two authority that the executive uses every day on the battlefield to engage in all kinds of battlefield operations troop movements military operations on the stablish the local bases all of that there are lots of things that happen on the battlefield without any kind of judicial review that the executive just has the authority that the executive branch may detain or transfer americans without any judicial review of the positive legal authority for the transfer so that's that's what it says and how how is the without judicial review consistent with a required so your are right i think i think that the position that we would that would we would say is that the there's no judicial review of the legal authority portion of what is going on but i don't know that our position is tha different as a practical matter because what we're saying is that the executive can only send somebody to a country with a legitimate interest and i think that there could be a role for the court to play in deciding kind of what the scope of a legitimate interest is and so i think that's a place where the court might have a role to play i don't think the court has a role to play in the sensing whether the legitimate interest as defined exists as a matter of fact in a particular case and so i you know the analogy i would draw there is to the other of you ability of whether in the sort of normal case so some of the dinner there that have a question i'd ask them as they go in the naafi their legal question was whether a country that has a particular interest which is to say an interest in prosecuting potentially prosecuting someone for potential crimes committed committed within their territory is is the type of interest that has to which transfer is definitely allowed and therefore right under you'll you'd say the same thing about transfer based on some other source of authority by the receiving country we won't get into particulars but in terms of if it's not transfer for purposes of enabling prosecution for crimes within territory but some other legal basis for the transfer the validity of that legal basis would be something that's subject  right so i think i think i think it is is certainly possible that the courts have a role to play in assessing whether that legal basis is the sort of legal basis that munaf was talking about so we've tried to extrapolate from an awful legal principle that there's a certain basket of interests that  at least that basket of interest is sufficient to engage in a transfer like the one we're talking about here could be that there's a much broader than already but we don't think the court needs to get into that in this case because the countries we've proffered are so close to what was going on in one off and the legal question whether that ba interests is enough is one of which there would be judicial review so i disagree that that would be something that is subject to additional review because i think we disagree with your honor about what omar says but if you're omar disagrees with me about what omar says then i think that the usual view would be limited to what we've just discussed which is whether that interest is a cog not is a legitimate interest as we conceive it under under munaf and then also of course under chioma which i think you know by is written in a sort of much more categorical way than the supreme court's decision and went off and just a underscore that i mean there's a lot of quotes like this in this court's opinion and he ended up going to to i should say not precludes a court from issuing a writ of habeas corpus to prevent a transfer and quote because of either continued detention or torture and so think we read from that is if the court cannot enjoin the transfer even to prevent continued detention it can enjoy the transfer for no reason at all just because the petitioner doesn't want to go to whatever country is at stake and the primary distinction that's been offered for kiambu to by petitioner that didn't involve u s citizens which is true except that this court said in footnote four that it was assuming quote argue endo these alien detainees have the same constitutional rights with respect to their proposed transfer citizens would with respect to challenging transfer based on conditions in the receiving country and that if that if the if the challenge doesn't have to do with conditions in the receiving country in other words of the challengers  saying here's why the transfer because the dishes receiving country are rights why the total might be one of them there could be other things doesn't comply with the laws that that we hold to be fundamental here things of that nature that's not something that can be reviewed which might be a different claim than a challenge that's based on the authority to detain here to be right so i just don't think it is written solely focused on the conditions in the receiving country because i wouldn't conceive of continued detention under that country's laws as a condition in the re country i would i think that's a reason why the person doesn't want to go there and so just you know cuba says that it another place that the district court cannot issue of habeas corpus to show the date detainee from a quote detention at the hands of another sovereign on its soil and under  and that's a page by sixteen of this of this court's opinion and so i think what the court was saying there is that even if the petitioner is concerned about continued detention which i don't think is a condition i think that's more he's worried about i just think i think about that is in a different box than whether he's likely to be tortured it's just a rationale for not wanting to go to the whatever country we would like to transfer him to even then the court cannot impose itself by hevia us and so i think when you read that in conjunction with moved off it's clear that the executive has very broad n something like that is detained on the battlefield in the executive makes a determination that they're in the combat you know they're going to transfer them district court would be without jurors or without the power to review that detention or that trains were your honor you know i don't think we need to that's really not our position in this case because that's different from this case and several i think significant respects for one thing i think i understand it's different no i don't besser but my point is is is that your argument that that would be a review and no your honor my argument today is that i think the court could play a role potentially in defining the scope of what is a legitimate interest as a legal matter and so it's hard for me you know i think there'd be a very difficult question about whether there would be a i'm in the sense of like ballantine means that i think in the extradition sense the executive needs and i don't think that applies here i think omar was not saying that i think would not take that off the table when i took to it would instead be asking me is whether there is a limit on the discretion that we're talking about and that is judicially reviewable limit and i think if you read move off you know i think you know we don't have a firm position on the outer banks bounds of this authority but i certainly think in the hypothetical you've offered it's a much more difficult case because i think there could be a real question about whether that country has a legitimate interest i would also note that on the sort of our side of the equation you know there are a lot of circumstances i'm just i'm sorry please there's two different is going on here one of which is whether there's legal authority right and a second of it whether the question of what is the legal authority judicial review and so it sounds like what you're saying is that based on just walk ins is hypo there be serious question about legal authority but as to judicial review ability what's your position far i guess i just i don't mean to be disagreeable i just don't think about it as a legal authority issue because i think legal authority is a concept from the extradition context that just doesn't apply here there has to be a treaty with country a in order to extradite somebody to country and i don't think that apparatus so if there is no legal authority requirement and let's suppose that's that step if we're going to operate under that premise then what role is there for the corps in my hypothetical so that's what i did so i think your honor there could be there could nonetheless be limits on the executive power so even if there's not a legal authority requirement in the sense the judgment of austin has suggested omar says and that backing ballantine does sa extradition there could be limits to the scope of executive power and so it could be in that circumstance that that is just so that countries are so far flung there's no basis in international law there's no basis in really any legitimate any legitimate basis for that country to be receiving petitioner that the executive just doesn't have discretion to do that and maybe ask some antic question then maybe we were fixated on the term legal operate as i understand it that might raise some red flags in your view about valentine but the way omar discusses it is it goes on in the same paragraph to explain why the concern that a raise at the outset of the paragraph was satisfied by the proceedings and went off and what it says is in the early termination of this litigation omar raise the heaviest argument that the government lacks constitutional or statutory  yeah i think i think i think so judge should have also i think what rudolph is saying is that the executive branch just has the authority to to do this and i don't think good offices in the court of course does not do this in one off isn't you know going through the u s code or the tree organization's treaties to try to find something more specific than just the general authority that the executive has of the battlefield but just if i mean or more time puts it to answer judge wilkens hypothetical the other thing i would like to stress is basically all the same predicate circumstances exist in this case as existed in  i think this is an important one pursuant to the military's good faith determination that he's an enemy combatant and then i would also note that there is ongoing hostilities in the region and so i think it would be of but i mean it's hard for me to imagine that if the united states believe the person was an innocent c n n journalist who hadn't engaged in acts of terrorism or participated in that sort of thing that they would have that we would never of you know transfer him to siberia or early any other country your honor suggested i also certainly said good faith belief that he's an enemy  or what i was trying to say is that there's no judicial review of his status as an enemy combatant but that's not to say that you know i think it's it would be entirely reasonable for this court were to agree with our narrow position in this case to say that part of the reason it's doing so is because the executive has made a good faith the determination that he's an enemy combatant i don't think the court needs to try to decide what would happen in a case where you know we haven't determined the person's enemy combat where they are just an innocent c n n journalist or something like that and because i think that matters and i think that's another reason which is another aspect in which we are very similar to move off because an off the executive had determined on it's up there was own process that the petitioners were enemy combatants but there'd been no judicial testing of that and there's been no judicial testing of that even though they were very adamant that they were innocent people i mean that the petitioners and not said they were just innocent translators who'd been caught up and you know this thing and there was no basis to prosecute them and they were americans and many of the same claims that have been raised here and i think the supreme court was very clear that those petitioners did not have a right to any u s judicial review of their status before they were transferred to the iraqis and i think our case is similar so so that that that i think is a very important question about going off so i think as i read been off you're correct that the detainees in the offer are making the claim that they couldn't lawfully be detained because they were innocent civilians and it seems to me the supreme court didn't treat with that at all and that's the basis of your submission that in that case if that's true then the same should be true here and court shouldn't treat with them the validity of the basis for the detention to begin with we can still just transfer without dealing with that but the other part of me off is that it's one way to read one off is that the court supreme court actually did sign did but not based on enemy combatants what the supreme court said was that this detention is the detention for purposes of criminal proceedings to take place in iraq which is something as to w broadly to a much wider range of circumstances than pending criminal proceedings in another country and so i think that you have a two takes a fairly broad view of moving off i also think that we should we should we can talk about this more easily in that in the closed session i think there are also another answer to your honor's point is that i think there are other interests that are very close to what your honor has to do to a criminal prosecutorial interest that i think are very analogous and that are present here but what about the fact that seeks to return to the u s there's a finding that's been made that he's an enemy combatant that he was unable to challenge should that concern so i think if there were in fact collateral consequences or at least a petition i thought there were he could raise those in opposition to dismissal of his a v s petition and then we could we can litigate that now i obviously will take i'm sure we will take a position as we have and as this court i think is agree with us in some cases including goal that that there are no collateral consequences sufficient to keep the proceeding alive once the person has been released from us custody but i don't think this court needs to confront that now because we're not asking you to dismiss is petition we're just asking the court to lift the transfer i've notice injunction as to the two countries and then we can if we're able to will you know if the other countries decide that they'd like to take him all transfer him and then there will be i'm sure at least potentially litigation in the district court that will come back to this court about whether that transfer has in fact mooted his his petition so i think your honor i mean if those are concerns your honor has i think we can we can discuss those later in the proceeding but aren't those concerns materially different in a case dealing with a u s citizen has a right to about that yet because i just don't think we're at that point i think those the issues your honor has raised would go to whether the case becomes moot following a transfer and i think that's something that we but don't they also don't those issues also go to  whether it's appropriate for a court to review his status as a in the combat if that is joe was so i guess i would separate that concept so i think there's the question of whether the court should review his possible transfer to the two countries we're talking about in which case we don't think the court i mean if we think we've made officially sufficient showing and we have the authority to execute those transfers about judicial oversight there is a second question of whether the court has made history as they can to review the merits of his challenge that custody it's entirely possible that that he could say there are some other collateral consequences because he's an american that recall that the keep it alive to keep it from being moved and i just think that's something we can the lady i make sure i understand your position is your position that whether or not he is in the combatant has no legal impact or effect at all one executives ability to transfer so if he's not an enemy combatant the executive can transfer him to any state that has some sort of legitimate sovereign interest it's not quite the way i think i would think about a judge will insist on you know in this case our position is that one of the things this court can and should or is welcome to rely on and i think could rely on in ruling for us is that we have made a good faith determination just as petitioner is an enemy combatant but i think it is very clear from munaf that the court there's no right to judicial review of that status before the transfer is effectuated and i think that just makes sense and it cannot be that he's entitled to a full round of haiti as review before the executive is able to relinquish custody of him to another country isn't due process always situational i mean you know you can have you know  process without having full blown jury trial and discovery and all of that i mean you know even in a criminal case when somebody is first detained perhaps under  only the government has to do is present some sort of sworn affidavit of probable cause that it can at least be examined in court in of the detention is going to go longer than that maybe it's a preliminary hearing or they have to produce a live wit and there's some cross examination in it if they want to convict them and hold them for and you know term of years under sentence and you've got to have the full panoply of rights of a trial but  you're saying that you know here it's all or nothing either there's no process or it's a full blown trial which is unworkable why is that the right way to look at d we're i think i just think that's how the supreme court looked at it munaf and so that's all we're just echoing what the supreme court said munaf where there were none of these judicial proceedings about the factual accuracy of the executors determination that those petitioners were enemy combatants so i wonder if inman off it's because there was no determination of whether this individual in fact are enemy combatants but that's because we unite were discussing earlier there was a determination of the legality of the detention it was just that the detention fall from a different source of authority which is the authority to detain pending prosecution and if that's let's just assume that that's the way when off work through that issue did so i just don't i just don't think that's what that's really not how the detainees and munaf conceive their claims i think they can see their claims as being visa v u s detention and the supreme court said there was jurisdiction to consider whether they had a basis for releasing these if you the united states you know i think that's a very tricky question whether because i think what you're the result of what your order has suggested i think would be that the u s could engage in detention as long as the iraqi criminal proceedings were ongoing and i don't know that that's i think that's what the supreme court met i think with the supreme court was saying was that we could give we could relinquish these people to the iraqi criminal justice system i don't think it was saying that the basis for detention was not their status of an as enemy combatants but was this  iraqi government and in a prosecution and iraqi courts release of any kind would interfere with the sovereign authority or act of punish offenses against its laws and then it within its borders and so it seems like the court was looking at the detention by s forces in concert with iraq and when it was validating it because the nature of the detention was in anticipation of iraq's sovereign authority to prosecute so i don't mean not obviously the dispute that's in the court's opinion and they talk about that i just don't think that i don't think the court was sort of we was moving the basis for detention from and to be combatant authority to do it disciplinary of legal proceedings especially because i think in that case the u s was it trying to relinquish custody of these individuals to the iraqi criminal justice system right then i think it would've been a pretty different would have been a different case and maybe had one not understand it isn't it is that why why why does it matter well because i think the question before the court was whether the united states could relinquish custody of them to the iraqi justice system at that time and so i just don't know what the court would have said and i think it would be a different case if the u s had come in and said no we want to keep holding them in u s custody for as long as it takes for the iraqi criminal justice system to reach the final point of final conviction or final acquittal and i just i just don't think that was what the court had in mind and what the parties were talking about in that case so that this gets to one other issue that i want to take explore which is the relationship between the authority to transfer and the authority to detain her so one way to look at the world and i think the way your colleagues on the other side look at the world is the authority to transfer presupposes an authority to detain especially if it's transferred to a third country because in order to transfer someone to another country you have to detain them and then move them and as i understand the way you look at the world it's a little bit different which is that you don't have to think about authority to detain at all if you're talking about authority transfer there to kind of disaggregated separate things and all we're looking at is authority to transfer and to be an authority to detain that person to begin with in order to facilitate the transfer right so i think it just looks at it from the wrong side of the equation because when you transfer somebody to afford country you are by definition relinquishing them from u s custody so it's sort of odd to say the u s needs authority to detain or to cease its detention and relinquish custody of someone to a foreign country and the way i would think about it and i think we talked about this in some length in our briefs is when when petitioner travels to a transnational battlefield that spans syria and iraq and let's just say hypothetically the iraqi government wanted to take custody of that petition or while he's there there be nothing in u s law to prevent that his only remedies in the united states would be diplomatic remedies and that's because when you leave the united states you surrender the protections you enjoy within the united states to somebody who is captured and detained abroad and then released abroad is is inherently immediately vulnerable to apprehension by a foreign government whether it's the country he's in or some other country in concert with the country he's  bride then and let's just say that they're just we were tourists that still they would have no claim as against transfer because transfer is the same thing as a release and they'd be seeking release and so they couldn't object to the transfer right so i don't think you're no no we're not we're not going that far at all your honor because i think what we're doing we're saying is in the context of move off and there's a lot of things that were going on in munaf that i think are all basically the same here in that circumstance you know this is already you know i don't think there is need to be a specific sort of legal authority but this sort of authority exists and i think that's what the supreme court was talking about which is the authority authority to do transfer so we're not making the i'm also talking about the no i understand your honor and we're not taking the position that that authority is plenary because releases tend to transfer equals release therefore transfer is release therefore we can do this whenever we want wherever we want to whoever won that is not that's not what we're saying here and i think there boxes that we're talking about that it sounds like your argument is that because what they're complaining about is transfer and because release is tantamount to transfer there's no hey vs review of the transfer why isn't that what you're saying because i think what we're saying here is that what we're saying here is that there could be heaviest review of whether the country that was transferring somebody to has a legitimate interest at least whether the the legal deciding what constitutes legitimate interest and i also think that there's i mean only that relates to that let's just let's just suppose that it's a case in which the country has what the executive used to be a legitimate interest of the person right then i think there could also be a role for the courts in assessing whether the  preconditions to this is already exist and i you know i think we've tried to generalize from moved off a pretty narrow rule in which those when in which that authority exists and one of the factors that i don't think is president your honour's hypothetical that i think the court could rely on and ruling for us here is that we've made a good faith determination here that this person is an enemy combatant and that changes this from the hapless aid worker or whatever that we've that we've you know we've come into custody have been for some reason want to transfer i also would just submit that you know it's hard so you've made a good faith a lot turns on the language then because i think we bought it down take it day to terminations of any demand see so if that's the question and suppose that the government had a legal view and i know the governor wouldn't do this but the gist was that the government had a legal view what the scope of judicial review would be but we certainly are not asserting i don't think the authority we're serving in this case requires going nearly that far it i guess my point is simply this that if if we were to reach the conclusion that that is something that could be reviewed and i take your point that that's a different case we would have to reach in this case but you know we're trying to draw lines and figure out what the implications of a ruling would be if we're trying to hard that out and say that that's something that would be reviewed then it seems like what's happening is that there the authority to detain an authority to transfer petitioners and would off could have been embedded journalists or any they said they were translators not journalists but they were said they were completely innocent people and the supreme court said they had no right to judicial review of that determination and then the two i think apply that in a broad circumstance and so i guess what i was in when i was answering your august question what i was thinking is you know in the in the general case this is not going to be reviewable but it's a possible that at the french at the margin there could be a role for the courts to play with the executive branch's determination is just facially absurd and i thought it would i think  that's right but i think you're right bob this your hypothetical presuppose that we have determined that the person was an innocent journalist and that's not something that munaf confronted at all in move off the government had obviously thought that the petitioners were were what they were at the government believe they were at there was sufficient evidence to try them criminally and so i think it's just a different case when you're talking about one where the government itself believes and has determined that the person is an innocent journalist that's just that's just a different very different circumstance than what we're talking about here that i think certainly distinguishes it from moved off and really raises a lot of difficult questions that are presented in this case because i think all the predicates i mentioned if you get an answer whose question was response to but are in dispute here so what will one thing is not which is that about that either that the government correct on the facts or that's on reviewable there's a legal proposition that's been put forward which is that in order to be a correct determination of enemy combatants you for purposes of detention you have to conclude that they are enough applies in this context but that's a legal question that's it and that that legal question could be seen as not meaningfully distanced from the legal question of whether there's an authority to detain someone because they're not on the basis of that the job right so so at the beginning i disagree that i don't think the court needs to get into all of this but i think if the court even if the court thinks that this is relevant on some level i think then there's there's a question about the authority to do things in the theater of battlefield operations and whether the judicial review of all as compared to the authority to detain someone until the end of active hostilities under hante and i think the latter the latter type of authority is is fairly specific in fairly whether we would win the heebie is proceeding on the merits either as to the legal basis or the factual basis in order to figure out whether we're allowed to relinquish custody of petitioner now to one of the two countries that will talk about so it  clarification on one line of argument that turbot use out of the times which is if if one were to read i'm not saying this is the way i read it but if one were to read my novel as validating detention on the idea that based on the undisputed facts there the detention was for the purposes of potential iraqi prosecution and that's a valid basis of detention and therefore we're signing we disappoint are signing off on authority to detain in that circumstance right and we just get authority to transfer based on the predicate that there is an authority to who who like petitioner is being held in u s custody and in fact in camp of the u s didn't even believe there are enemy combatants anymore right now is the whole point that's why we were trying to transfer them who doesn't want to go to the recipient country and that this court i think was very clear that there's no hands of u s authorities here that was just kind of put off the table because because the government conceded it didn't have authority to detain and so i think the but i think that answers your honour's question right so so there was no authority to engage in continued detention camp or to that was the point and yet the court found moved off to be controlling on these questions about the scope of the authority to transfer through so so it can't just listed for the proposition that therefore there is never any review of the basis for dead detention because it was conceded that there wasn't a basis for for continued detention that would be one thing that would be very much to your benefit but i get one way to to look at the end it is to say that what it was about was a situation in which nobody was asking for release because that just wasn't available because these and of well didn't have any authority to be released either you know where they were being detained into cuba or an authority to be released into the us because they were aliens the release was off the table all we're talking about is a practical accommodation of is of what to do with individuals who can't be released they have to be transferred and we're just talking about where they could be transferred whereas one could say that in a case like this one the question of release actually is on the table because they are the individual is a united states citizen so the possibility of release in assume that they had all the same rights as u s citizens and put in the four as the u s citizens and not so i think when the court says that i mean i think it's sort of taking this distinction off the table in the sense that the already have the same rights visa be objecting to a transfer to a third country based on the conditions of their country right didn't i don't i don't know the footnote has to be read to say they had the same rights fees of the release because everybody agreed and that release at least released in the us was not even know i know i but i think i thought i took your honor to be to be linking the two and saying that the ticket the ability of release changes the scope of the authority to transfer and so i guess i'm just saying that if that were what the court had meant and camber to i think it would have just been written differently and wouldn't of equated the petitioners in front of it with you it would have said it was assuming they had the same rights as u s citizens because if they were in fact had the same rights as u s citizens and it was in fact significant that that would then mean they could be released in the united states and that would change the whole analysis under the line of reasoning i think your hon so there's no more questions i'll be back so i will give you some time for rebuttal to ok thank you spam please the court it's a little difficult to respond because the government has shifted position positions multiple times they've shifted from what they told judge chuck in initially they shifted from what they told this court from their initial brief in the reply brief and how they shifted our argument but what they presented to judge talking was this a blank check to render forcibly render an american citizen to any country the executive deemed interest in him without positive legal authority and without any judicial review whatsoever in fact they told the judge struck him and this is at page eighteen of the  now in light of this sure i understand this argument because it seems like it's just within a can of parties in litigation all the time to narrow the scope of issues and that's an understanding of what the government is doing is that they're saying you know whatever was the case below and however this is teed up we're seeking to narrow the scope of the issues and one way in which was so even though the scale of the issues is basically and operates in your favor because it's essentially a concession to three points on that one of which is one of the country neither the countries were provided to us in the district court and only one of them was provided to judge struck him and second just in terms of the judge chuck ins exercise of her powers it was in light of this sweeping position that she entered an exceedingly narrow order requiring the government to provide nearly seventy two hours notice the literally the minimum notice to provide petition with an opportunity to challenge the basis for his transfer and for the court to review that transfer and the this notice requirement service reserved just to review for two critical functions one is which to determine whether there is positive legal authority to transfer an american citizen and then secondarily to ensure that it's not an extreme case to preserve rule review in the case of an extreme case in which the executive is transferring a citizen regardless of the risk of torture both of which require prior judicial review on the positive legal authority point i this is a critical point is as your honor no deal how was the second it might be better to defer that to the close session but we at the point it's not it's not the focus of this case the main focus is authority but the government says that we didn't raise anything about the risk of course because we didn't know to what country general pointed to that the court noted about the specific facilities that they were going to be transferred to and whose authority they were under so but i want to if i if i may return to positive legal authority because i think that is is is critical the as this court  recognized in omar two and as a supreme court is recognized multiple times there has to be positive legal authority based on the due process clause and the separation of powers to transfer an american citizen that positive legal authority can take different forms it can take the form of an extradition treaty if someone's being transferred for to a different country for criminal prosecution it also can take the form of international agreements during war time such as the geneva conventions potentially or it can take the form of a treaty that authorizes the executive to enter into particular agreements and i would call your honor speaking of sweeping positions i mean your position in the district court hears the discord is that there's no positive legal authority for him to go anywhere that their only option is to release him or bring him to us and charge him with a crime in article three isn't that your position our position is that the government has not identified at this point any that the one we're talking about the liberty of an american citizen it has to be all three branches have to be involved it has to have some it has to root itself to some source of positive authority or stature in a treaty the supreme court your honor has never held whatever part of fairest power the president might have it is never help in any case that the president has under is article two a power the authority to render an american citizen to another country without legal yeah let me ask you this he's detained in syria and then transferred and further detained in iraq was there positive legal authority for him to be moved from syria into iraq well no your honor we don't we don't think there is because he's not i don't know what he says release and right now well he is the only the only possible positive legal authority that would be the same legal authority i think to continue to detain him disputed that vigorously and that is presently before the district court so the power that they have over his body now over his corpus is their assertion that he's an enemy combatant he's disputing that and for that reason we are arguing he should be if it's somebody who's on this beautifully an enemy combatant if they're an american citizen then there's no authority to transfer based on enemy combatants that's period there's just no authority to transfer that sounds like that's your legal  and the idea would be that once you've made a determination that the individual is an enemy combatant part and parcel of that authority just like the authority it once let's let's let's start with this proposition once an american citizen has been  proposition would be that part and parcel of detainees somebody is an enemy combatant in connection with an ongoing conflict is transfer because that's just something that's always happened in history with people who are  combatants it's part of the give and take of warfare is that countries are exchanging prisoners they're engaging in these sorts of actions all the time is part and parcel of warfare so just like there's the authority to detain somebody who's  want to go i mean that's the government is not the disavowed in their brief and they're that they're relying on his enemy combatant status as a result i'm just asking you to answer that we can talk about what the government is left open and has not left there's no authority to transfer that person could exist under the law if he was subject to the laws of war and he was valley detained under the two thousand and want to two thousand a u n have i would submit that could certainly potentially be a basis for traffic that would be a very different case though your honor because they've they have are soome in the extent that they were lying on his enemy combatant status which they seemed again it seems to be a moving target the centerline on his status as an enemy as an enemy combatant assuming the answer to the question and what the supreme court said in was a good faith basis is not enough that's essentially what the u s government told the supreme court in the supreme court and in a two hundred eight justices on that point rejected that when it comes to the liberty of an american citizen and a good is not enough it's not enough to trust the executive branch there has to be judicial review and so if there has to be judicial review the united states can circumvent humpty by relying on his enemy c because after mid off what we know is that even if there's a dispute on a sort of dispute about the validity of detention as an enemy combatant that's just off the table when you get to the question of whether the person can be transferred because  but often omar contested whether they were innocent civilians or enemy combatants and the supreme court didn't care about that they went ahead and authorize the transfer even though there was still an ongoing open at it refused to bar their transfer because they were being prosecuted in iraq and secondly it said because they are being wanted for crimes that they being prosecuted for crimes that they committed in iraq while in iraq there is no basis for he is really so there was no relief that the court could buy and so it dismissed the petition because there was no available said that they are the only remedy would be releasing them into iraqi prosecution or smuggling them out of iraq to quote the supreme court because they were wanted for prosecution in iraq so there was no remedy available here our client has been held for over six months he hasn't been charged with a crime by the united states or by anyone else and there is a remedy about will in fact as the government says on page six of its reply brief there is a remedy that would fully vindicate his a b s rights freeing him at a safe location in iraq and with that not possible for there is also the remedy is this as the court noted that he could be brought to the united states or ala a remedy that was not available either in that if that that person then can't be transferred even immediately on the battlefield that the minute that american citizenship comes into play and essentially what happens is there is a duty on the part of the united states to a court has the authority to review the legality of the detention order release if appropriate or to prevent an unlawful transfer there whether there's a space before a court is involved and what might happen is to go i mean it's simply not before this court about what might be done but i would say as a as a as a i mean the united states government have a duty as to its own citizens well let's suppose that judge srinivasan is hypothetical you know he's allowed to make a phone call and he makes a phone call and then they wanted to move them to iraq as the government says in this case and hold them there because that's a safe place to hold them i think that would not be different if they were that would be then the court would held them in the military prison there that decision to move them to u s prison that's within the purview of the executive branch if the united states were at that point to seek to transfer that citizen to a different country there would be there would once there is a capture and an assertion that then there's either a release or has to be continued detention no ability to transfer or even on a spur of the moment determination in the case of an american citizen petition that's been filed there is no authority to well there might be authority they might be transferring them pursuant to legal authority but that would be subject to review were not our position is not to be clear also that the united states cannot transfer though it's just they cannot transfer him in voluntarily without legal authority and review of that authority so it doesn't matter you know at what i what point in the continuum that that that option is not on the table for u s citizens so if the united states takes someone captures them on a battlefield if they assert as they've asserted here that he's an enemy combatant they can continue to detain him on that basis a subject to judicial review under hante another supreme court precedence they can release him they can charge him with a crime which they haven't done or they can transfer him pursuant to valid legal authority and subject to review they can't forcibly render an american citizen without some source of authority it has to go back at its root this goes to your honor's article two question i do want to make sure i answer that it has to the supreme court said in were not enough this court made clear in o authorized the united states to enforce security council resolutions in iraq which included acting essentially as iraq's policemen and jailer at that i would point your point out your honor judge randolph concurring opinion  the liberty of a citizen is at stake all three branches have to be involved and that's whether they want the united states wants to detain a person indefinitely as an enemy combatant or whether they want to dispose of the liberty by forcibly transferring that is waging a war that then part and parcel of that authority to wage war the authority to transfer well i think that that goes piers i go back to the question your honor was asking me before the answer is a potentially like what i think would tell you would have to in i think for an extradition it would certainly have to face charges it would have to spell out the source of authority there have to spell out the transfer provision if there was some kind of power over to detain enemy combatants i possible that the court if the person were found to be an enemy combatant that the transfer authority could be potentially inferred but the government is not relying on anything they've not provided any statute or the way the government's trying hon detain there were still a validation of the ability to transfer the idea that transfer could be had was not disputed so how does that how do you deal with the have they given that and you have a you're dealing with  ilian detainees who by longstanding practice could be repatriated to their home country or to a safe their country either at the conclusion of hostilities or after there was no longer a desire to detain them and there was no basis for there was no remedy available and he had to because they can be released at one time tomorrow and they couldn't be released in the united states because this court sad the determination with regard to aliens is the admission of aliens is a political branch determination so there's no as in munaf innocent in that sense there was no hay vs relief available because there was no possible remedy there was no there was nothing the court do it terms of in terms of providing heaviest relief which is released from custody which is what we're asking for here i want to just make sure i'm clear on the record factual question correct me if i'm wrong when i did not see anywhere in your petition or anywhere in your response to the factual return that was filed by the government and the assertion in the pleading syria as to learn about the conflict report about the conflict he was he was tortured captured tortured by isis while he was in custody every taken into custody there and that he saw his excepts to government allegations of l it was true for the limited purpose of this threshold challenge and has reserved his right to challenge those allegations at a later stage in insists that there's some yeah that's that's correct your honor we he accepted the allegations for purposes of challenging the government's legal authority to hold him because if there's no legal authority to hold him which he claimed there's not is a source of legal authority and you kind of assume that for the sake of argument for the position that you take in the district court kind of where we are here posture that you are taking the assumed the will of we assume that the truth of those facts solely for the limited purpose of his challenged his detention we did not assume the truth of those facts for purposes of his transfer and the gut and the think then that your honor that would be inconsistent with andi because he's well for though he's reserved his right to dispute the facts but his challenge the government's legal authorities of which are you to to hold him so in order if you are if this court we're going in the government has not rely on that should the court if the court wishes to have further briefing and a separate hearing to discuss that issue were compared to do that we've we've tested both the legal and the factual basis for process that was laid out in handy which was a challenge to the challenger canvasses first challenge to the government's legal authority right to do that the statutes were a lot that the government is relying on cover the person in question is there independent article two power to detain we as we said there is not and even if there is is there a factual basis for that detention is there a is there is after based on the matthews versus eldridge balancing test and you have meaningful opportunity to authority right it it's a different source of authority it's like for example it could be an extradition treaty or it could be a as in munaf a statute that implemented international agreement that would that allow for the the potential prosecution for crimes committed in the country to which the person who has custody the for the person would be if there if it's detention if they're relying on the same if the government is relying on the same power to transfer that it is to detain you then absolutely you need to find out whether the detention a court has to establish that the detention is proper right if they if the government wants to transfer him based on his status where there are good faith determination an enemy combatant under the age of a mass the court then would first need to find that he is in fact an enemy combatant and so the that if that's the basis the government's relying on then the government is free to present that somebody who's an addict about me pick them up on the battlefield they were engaged in hostilities against our troops and their claim the u s citizenship here and we want to transfer them in the give and take of warfare to a different country your submission is that the harm the process for the galley of detention is required in every instance in which that's the case you have to go there but short of release you've got to carry out a release but short of release in every instance the person is entitled to the hamdi process before they can be treated if there be if the basis for detain is enemy combatant yes that's correct because other otherwise your honor we leave it would it would present the what the rule the government is asking for they try to obscure of the rule the government is asking for is that if they determine someone is a battlefield detainee a reporter embedded journalist or interest there's a language from they determine that person is a battlefield detainee then the government has unilateral and unreviewable authority to transfer that person to any country in which they determine has a legitimate interest in  detentions and why would the same be to true of transfers that if you have a capture an immediate battlefield determination or something in i mean i don't know what the exact t you know presumably the military has some discretion in determining how to deal with people they pick up on the battlefield that there could be a determination made with some easy that under the harm harmed the calculus wouldn't be subject question but here well here you are it's possible that you that you're that that you're you're on to draw that distinction i think if there was no if there was no basis for a court to review the detention at know in the immediacy of a battlefield capture there might not there you know there would might not be a basis for a court to review the transfer but here and this is the this was an issue that we explored in the district court when the court was determining whether or not there was h of course adopted a position that was if anything more favorable to american citizens he drew a distinction based on where the person a potential position based on where the person is being held because he said where the citizen captured outside and how well you can use it as it is captured outside and held outside the united states the constitutional requirements may be different and that's this case because it was held captured outside the united states and so i'm just wondering if and the concurring opinion of justice souter he is entitled to a minimum the meaningful opportunity to challenge the legal and the factual basis for his detention so the where his locus of capture matters deciding to keep him in iraq as opposed to whether they're moving to united states that's it's where the military wants to hold him within u s custody we we can see that's a military matter but it can't affect the rights that he has do as an american citizen but and he can seek to return to the u s or he can seek to go wherever else but you know he traveled out of the u s and went to voluntarily to syria well maybe in voluntarily he ended up in the maybe a but you know at least he's released why couldn't the u s just at this point say we want to wash our hands of the matter and release him someplace and clause and the and the separation of powers cannot dispose of the liberty of a u s citizen to a forcible transfer because the united states the executive branch has never had there's no case the government sites that said the executive branch can wash their hands of an american citizen an american citizen by forcibly transferring him to another country if forcible transfer is not equivalent to release is not equivalent to release as a matter of law or common sense for him ever was the same equipment as a voluntarily traveled there and let's suppose it was legally appropriate for him to be moved removed from syria to iraq and iraq says at that point  can as a u s that may be true as an as a not if there's no possibility of release for a non citizen and they don't want to detain the non citizen anymore and they can't release the non citizen where they are they may have to at that point like and they have to find another country the district the district he's been unlawfully detained and so the district court in the exercise of its equitable havey is powers in fashioning a remedy appropriate to the circumstances of the particular case has the or found to be illegal or improper because they were non citizens and it conflicted with powers over immigration but as an american citizen there is no use of i mean there's nothing that would bar a court if necessary from ordering that the person be brought back here that said your crime nor as a rock nor has any other country in this case or so i think it's undisputed in this case that when he was initially captured he claimed united states citizenship so that he could get a production of u s forces right he then necessarily keep me right where i am or keep your out where i am but then give me some secure the secret service detail to protect me as i go where i want to go i think what they what they're asking for when necessarily mean take me back to the us it just means take me some giving out or take me somewhere and that could be whatever the u s decides it's appropriate to take is not necessarily what's going on in a situation in which somebody united states army to open the jailhouse doors and let him go they could not do that in munaf because the petitioners there were being prosecuted for ongoing criminal charges they were literally being brought by the united states the multinational force to the iraqi court every day and the court enjoying that the lower courts enjoined that and they halted the trial he could not be released and not just could not be released in iraq we're we are simply asking after now six months of detention that he be freed that's it doesn't have the power to forcibly transfer him to another government and so it may be he was asking for the protections of the united states he did not he was not by by virtue of claiming his u s citizenship he was not inviting the united states to render him to any country it deemed suitable without any kind of review he he's not he claims and maintains he has not done committed any crime or done anything wrong no one charge him with a crime there's no barrier to his release