APPEAL,CLOSED,HABEAS,TYPE−G
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:17−cv−02069−TSC

DOE v. MATTIS Assigned to: Judge Tanya S. Chutkan Case in other court: USCA, 18−05032
USCA, 18−05110 Cause: 28:2241 Petition for Writ of Habeas Corpus (federa
Petitioner

Date Filed: 10/05/2017 Date Terminated: 11/09/2018 Jury Demand: None Nature of Suit: 530 Prisoner Petition: General (Habeas Corpus) Jurisdiction: U.S. Government Defendant

JOHN DOE

represented by Arthur B. Spitzer AMERICAN CIVIL LIBERTIES UNION OF THE DISTRICT OF COLUMBIA 915 15th Street, NW 2nd Floor Washington, DC 20005 (202) 601−4266 Fax: (202) 457−0805 Email: artspitzer@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brett Max Kaufman AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street 18th Floor New York, NY 10004 (212) 549−2603 Fax: (212) 549−2654 Email: bkaufman@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Hina Shamsi AMERICAN CIVIL LIBERTIES UNION FOUNDATION National Security Project 125 Broad Street 18th floor New York, NY 10004 (212) 284−7321 Fax: (212) 549−2654 Email: hshamsi@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jonathan Hafetz AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street 18th Floor New York, NY 10004 (212) 549−2500 Email: jhafetz@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dror Ladin AMERICAN CIVIL LIBERTIES UNION

V.
Respondent
JAMES N. MATTIS in his official capacity as Secretary of Defense

FOUNDATION 125 Broad Street 18th Floor New York, NY 10004 (212) 549−2654 Fax: (212) 549−2654 Email: dladin@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Hope Richardson Metcalf 127 Wall Street New Haven, CT 06511 (203) 432−9404 Fax: (203) 432−8260 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by James Mahoney Burnham U.S. DEPARTMENT OF JUSTICE Civil Division 950 Pennsylvania Avenue, NW Washington, DC 20530 (202) 353−5049 Email: james.burnham@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryn L. Wyer U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 1100 L Street, NW Washington, DC 20005 (202) 616−8475 Fax: (202) 616−8470 Email: kathryn.wyer@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Olivia R. Hussey Scott U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Program Branch 1100 L Street, N.W. 1100 L Street, NW Room 11112 Washington, DC 20005 202−616−8491 Fax: 202−616−8470 Email: olivia.hussey.scott@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Terry Marcus Henry U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 1100 L Street, NW Washington, DC 20005 (202) 514−4107 Fax: (202) 616−8470 Email: terry.henry@usdoj.gov LEAD ATTORNEY

ATTORNEY TO BE NOTICED

Date Filed 10/05/2017
10/05/2017 10/05/2017 10/05/2017 10/05/2017 10/06/2017 10/12/2017 10/12/2017 10/19/2017
10/20/2017 10/20/2017
10/30/2017 10/30/2017 11/02/2017

# Docket Text
1 ENTERED IN ERROR.....COMPLAINT against JAMES N. MATTIS ( Filing fee $ 400 receipt number 0090−5146078), CIVIL COVER SHEET by JOHN DOE, AMERICAN CIVIL LIBERTIES UNION FOUNDATION filed by JOHN DOE, AMERICAN CIVIL LIBERTIES UNION FOUNDATION. (Attachments: # 1 Civil Cover Sheet, # 2 Summons)(Shamsi, Hina) Modified on 10/6/2017 (zsb). (Entered: 10/05/2017)
2 ENTERED IN ERROR.....Corporate Disclosure Statement by AMERICAN CIVIL LIBERTIES UNION FOUNDATION, JOHN DOE. (Shamsi, Hina) Modified on 10/6/2017 (zsb). (Entered: 10/05/2017)
3 NOTICE of Appearance by Arthur B. Spitzer on behalf of AMERICAN CIVIL LIBERTIES UNION FOUNDATION (Spitzer, Arthur) (Entered: 10/05/2017)
4 PETITION for Writ of Habeas Corpus ( Filing fee $ 5 receipt number 4616087445.) filed by AMERICAN CIVIL LIBERTIES UNION FOUNDATION. (Attachments: # 1 Civil Cover Sheet)(Shamsi, Hina) (Entered: 10/05/2017)
5 Corporate Disclosure Statement by AMERICAN CIVIL LIBERTIES UNION FOUNDATION. (Shamsi, Hina) (Entered: 10/05/2017)
Case Assigned to Judge Tanya S. Chutkan. (zsb) (Entered: 10/06/2017)
6 NOTICE of Appearance by Jonathan L. Hafetz on behalf of AMERICAN CIVIL LIBERTIES UNION FOUNDATION (Attachments: # 1 Exhibit Pro Bono Certification)(Hafetz, Jonathan) (Entered: 10/12/2017)
7 Emergency MOTION for Order to Show Cause on Counsel Access and Memorandum of Law in Support by AMERICAN CIVIL LIBERTIES UNION FOUNDATION (Attachments: # 1 Text of Proposed Order)(Shamsi, Hina) (Entered: 10/12/2017)
8 ORDER granting in part and denying in part 7 Petitioner's Emergency Motion for Order to Show Cause on Counsel Access. Petitioner shall promptly serve a copy of this Order, 4 the Petition for a Writ of Habeas Corpus, and 7 the Petitioner's Emergency Motion for Order to Show Cause on Counsel Access on the Respondent, the U.S. Attorney General, and the U.S. Attorney for the District of Columbia, Special Proceedings Division. Within 10 days of service of this Order, Respondent shall explain, in writing, why Respondent should not give the Petitioner access to the Unnamed U.S. Citizen. The Petitioner shall file a reply within 3 days of service of the opposition. Signed by Judge Tanya S. Chutkan on 10/19/2017. (lctsc2). (Entered: 10/19/2017)
9 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 10/20/2017. Answer due for ALL FEDERAL DEFENDANTS by 12/19/2017. (Attachments: # 1 Declaration of Service)(Spitzer, Arthur) (Entered: 10/20/2017)
10 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. JAMES N. MATTIS served on 10/20/2017, RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 10/20/2017. (Attachments: # 1 Declaration of Service)(Shamsi, Hina) (Entered: 10/20/2017)
11 MOTION to Dismiss and Response to Court's Order of October 19, 2017 by JAMES N. MATTIS (Attachments: # 1 Declaration of Steven W. Dalbey, # 2 Text of Proposed Order)(Wyer, Kathryn) (Entered: 10/30/2017)
12 RESPONSE TO ORDER OF THE COURT re 8 Order on Motion for Order to Show Cause filed by JAMES N. MATTIS. (See Docket Entry 11 to view document). (znmw) (Entered: 10/31/2017)
13 Memorandum in opposition to re 11 MOTION to Dismiss and Response to Court's Order of October 19, 2017 and Reply in Support of Emergency Motion for Counsel Access filed by AMERICAN CIVIL LIBERTIES UNION FOUNDATION.

11/02/2017 11/09/2017 11/20/2017 11/21/2017 11/26/2017 11/27/2017 11/30/2017 11/30/2017 11/30/2017
12/01/2017 12/01/2017 12/01/2017
12/01/2017

(Attachments: # 1 Declaration Declaration of Gabor Rona, # 2 Declaration Declaration of Belkis Wille)(Shamsi, Hina) (Entered: 11/02/2017)
14 REPLY to opposition to motion re 7 Emergency MOTION for Order to Show Cause on Counsel Access and Memorandum of Law in Support filed by AMERICAN CIVIL LIBERTIES UNION FOUNDATION. (See Docket Entry 13 to view document). (znmw) (Entered: 11/03/2017)
15 REPLY to opposition to motion re 11 MOTION to Dismiss and Response to Court's Order of October 19, 2017 filed by JAMES N. MATTIS. (Wyer, Kathryn) (Entered: 11/09/2017)
16 MOTION for Hearing or Status Conference by AMERICAN CIVIL LIBERTIES UNION FOUNDATION (Shamsi, Hina) (Entered: 11/20/2017)
MINUTE ORDER granting 16 Motion for Hearing or Status Conference. A motions hearing is hereby set for 11/30/17 at 10:00 a.m. in Courtroom 9. Signed by Judge Tanya S. Chutkan on 11/21/2017. (lctsc2). (Entered: 11/21/2017)
Set/Reset Hearings: A Motions Hearing is set for 11/30/2017 at 10:00 AM in Courtroom 9 before Judge Tanya S. Chutkan. (jth) (Entered: 11/26/2017)
17 NOTICE of Appearance by Brett Max Kaufman on behalf of AMERICAN CIVIL LIBERTIES UNION FOUNDATION (Kaufman, Brett) (Entered: 11/27/2017)
18 RESPONSE TO ORDER OF THE COURT re Order on Motion for Hearing filed by JAMES N. MATTIS. (Wyer, Kathryn) (Entered: 11/30/2017)
19 RESPONSE re 18 Response to Order of the Court filed by AMERICAN CIVIL LIBERTIES UNION FOUNDATION. (Shamsi, Hina) (Entered: 11/30/2017)
Minute Entry: Motion Hearing held on 11/30/2017 before Judge Chutkan: re 11 MOTION to Dismiss and Response to Court's Order of October 19, 2017 filed by JAMES N. MATTIS; motion heard and taken under advisement. The government shall inform the Court by COB on 11/30/17 whether (1) the detainee has been advised of his constitutional rights, including any right to counsel or to pursue habeas or other remedies in U.S. courts and; (2) if the detainee has invoked or asserted any such rights. (Court Reporter Bryan Wayne) (tb) (Entered: 12/01/2017)
20 RESPONSE to Petitioner's Proposed Relief 19 filed by JAMES N. MATTIS. (Wyer, Kathryn) (Entered: 12/01/2017)
21 ERRATA re Respondent's Response to Court's Order 18 by JAMES N. MATTIS. (Attachments: # 1 Corrected Response to Court's Order)(Wyer, Kathryn) (Entered: 12/01/2017)
MINUTE ORDER: The court hereby orders both parties to file supplemental briefs addressing the court's authority to order limited jurisdictional discovery in this case, as proposed in the 19 Petitioner's Response to Respondent's November 30, 2017, 5 P.M. Filing. The Government shall file its brief by Monday, December 4, 2017 at 5 p.m. The Petitioner shall file a brief in response by Thursday, December 7, 2017 at noon. The parties' supplemental briefs should be no longer than 10 pages. The court will hold a hearing on the supplemental briefing on Friday, December 8, 2017 at 11:15 a.m. Signed by Judge Tanya S. Chutkan on 12/1/2017. (lctsc2). (Entered: 12/01/2017)
AMENDED MINUTE ORDER: The court hereby orders both parties to file supplemental briefs addressing the court's authority to order limited jurisdictional discovery in this case, as proposed in the 19 Petitioner's Response to Respondent's November 30, 2017, 5 P.M. Filing. In their briefs, in light of the Government's representation that the detainee has requested an attorney in its 18 Response to the Court's Order, the parties shall also address the Government's independent obligation to comply with the detainee's request and provide him with access to counsel. The Government shall file its brief by Monday, December 4, 2017 at 5 p.m. The Petitioner shall file a brief in response by Thursday, December 7, 2017 at noon. The parties' supplemental briefs should be no longer than 10 pages. The court will hold a hearing on the supplemental briefing on Friday, December 8, 2017 at 11:15 a.m. Signed by Judge Tanya S. Chutkan on 12/1/2017. (lctsc2). (Entered: 12/01/2017)

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22 TRANSCRIPT OF 11/30/17 MOTIONS HEARING before Judge Tanya S. Chutkan held on November 30, 2017. Page Numbers: 1−42. Date of Issuance: December 2, 2017. Court Reporter: Bryan A. Wayne. Transcripts may be ordered by submitting a Transcript Order Form at www.dcd.uscourts.gov under Request Transcript tab. For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov. Redaction Request due 12/23/2017. Redacted Transcript Deadline set for 1/2/2018. Release of Transcript Restriction set for 3/2/2018.(Wayne, Bryan) (Entered: 12/02/2017)
23 MOTION to Continue Hearing Currently Scheduled for December 8, 2017 due to Conflict of Counsel by JAMES N. MATTIS (Attachments: # 1 Text of Proposed Order)(Wyer, Kathryn) (Entered: 12/04/2017)
Set/Reset Deadlines/Hearings: Government's brief due by 12/4/2017. Response due by 12/7/2017. Status Conference set for 12/8/2017 at 11:15 AM in Courtroom 9 before Judge Tanya S. Chutkan. (tb) (Entered: 12/04/2017)
MINUTE ORDER granting 23 Motion to Continue Due to Conflict of Counsel. The hearing currently scheduled for December 8, 2017 is hereby rescheduled for December 11, 2017 at 10:00 a.m. Signed by Judge Tanya S. Chutkan on 12/4/2017. (lctsc2). Modified event title on 12/5/2017 (znmw). (Entered: 12/04/2017)
24 SUPPLEMENTAL MEMORANDUM to re 11 MOTION to Dismiss and Response to Court's Order of October 19, 2017 filed by JAMES N. MATTIS. (Wyer, Kathryn) (Entered: 12/04/2017)
Set/Reset Hearings: Status Conference reset for 12/11/2017 at 10:00 AM in Courtroom 9 before Judge Tanya S. Chutkan. (tb) (Entered: 12/05/2017)
25 SUPPLEMENTAL MEMORANDUM to re Order,,, filed by AMERICAN CIVIL LIBERTIES UNION FOUNDATION. (Hafetz, Jonathan) (Entered: 12/07/2017)
26 RESPONSE TO ORDER OF THE COURT re Order,,, (Addendum Regarding Court's Inquiry) filed by JAMES N. MATTIS. (Wyer, Kathryn) (Entered: 12/11/2017)
Minute Entry: Status Conference held on 12/11/2017 before Judge Tanya S. Chutkan: Oral argument heard and court ruling forthcoming. (Court Reporter Bryan Wayne) (tb) (Entered: 12/12/2017)
27 NOTICE of Filing of Additional Information Pertinent to Emergency Motion for Counsel Access by AMERICAN CIVIL LIBERTIES UNION FOUNDATION (Hafetz, Jonathan) (Entered: 12/21/2017)
MINUTE ORDER: The Government is hereby ordered to respond to Petitioner's Notice of Filing of Additional Information (ECF No. 27 ) by Friday December 22, 2017 at noon. The response shall be no more than 5 pages. Signed by Judge Tanya S. Chutkan on 12/21/17. (DJS) (Entered: 12/21/2017)
28 RESPONSE re 27 Notice (Other) filed by JAMES N. MATTIS. (Wyer, Kathryn) (Entered: 12/22/2017)
29 MEMORANDUM AND OPINION: Re Defendant's Motion to Dismiss 11 . Signed by Judge Tanya S. Chutkan on 12/23/17. (DJS) (Entered: 12/23/2017)
30 ORDER: Denying Respondent's Motion to Dismiss 11 . Respondent is hereby ordered to: (1) permit the ACLUF immediate and unmonitored access, in person or via videoconferencing, to the detainee for the sole purpose of determining whether the detainee wishes for the ACLUF to continue this action on his behalf; and (2) refrain from transferring the detainee until the ACLUF informs the court of the detainees wishes. (see order for further details) Signed by Judge Tanya S. Chutkan on 12/23/17.

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01/12/2018

(DJS) (Entered: 12/23/2017)
31 RESPONSE TO ORDER OF THE COURT re 30 Order on Motion to Dismiss,, filed by AMERICAN CIVIL LIBERTIES UNION FOUNDATION. (Attachments: # 1 Text of Proposed Order)(Hafetz, Jonathan) (Entered: 01/05/2018)
32 MOTION Regarding Continued Interim Relief re 30 Order on Motion to Dismiss,, by AMERICAN CIVIL LIBERTIES UNION FOUNDATION (Attachments: # 1 Text of Proposed Order)(Hafetz, Jonathan) (Entered: 01/05/2018)
MINUTE ORDER: The government is hereby ordered to respond to Petitioner's Motion Regarding Continued Interim Relief (ECF No. 32 ) by Monday, January 8, 2018 at 5:00 p.m. Signed by Judge Tanya S. Chutkan on 1/5/2018. (lctsc2). (Entered: 01/05/2018)
33 Memorandum in opposition to re 32 MOTION Regarding Continued Interim Relief re 30 Order on Motion to Dismiss,, filed by JAMES N. MATTIS. (Attachments: # 1 Text of Proposed Order)(Wyer, Kathryn) (Entered: 01/08/2018)
MINUTE ORDER: Petitioner's reply, if any, to the government's Opposition to Petitioner's Motion Seeking Continued Interim Relief (ECF No. 33 ) is due by Wednesday, January 10, 2018 at noon.Signed by Judge Tanya S. Chutkan on 1/8/2018. (lctsc2). (Entered: 01/08/2018)
Set/Reset Deadlines: Any Reply by Petitioner's to the Government's Opposition to Petitioner's Motion Seeking Continued Interim Relief (Dkt. #33) is due by 1/10/2018 at 12:00 PM (noon). (jth) (Entered: 01/09/2018)
34 REPLY re 31 Response to Order of the Court of December 23, 2017, filed by AMERICAN CIVIL LIBERTIES UNION FOUNDATION. (Hafetz, Jonathan) (Entered: 01/10/2018)
35 REPLY to opposition to motion re 32 MOTION Regarding Continued Interim Relief re 30 Order on Motion to Dismiss,, filed by AMERICAN CIVIL LIBERTIES UNION FOUNDATION. (Hafetz, Jonathan) (Entered: 01/10/2018)
36 MOTION for Leave to Continue Under Pseudonym by AMERICAN CIVIL LIBERTIES UNION FOUNDATION (Attachments: # 1 Text of Proposed Order)(Hafetz, Jonathan) (Entered: 01/10/2018)
MINUTE ORDER: The government's response, if any, to Petitioner's Motion for Leave to Continue Under Pseudonym (ECF No. 36 ) is due by Friday, January 12, 2018 at 10 a.m. Signed by Judge Tanya S. Chutkan on 1/10/2018. (lctsc2). (Entered: 01/10/2018)
Set/Reset Deadlines: Response due by 1/12/2018. (tb) (Entered: 01/10/2018)
37 RESPONSE re 36 MOTION for Leave to Continue Under Pseudonym filed by JAMES N. MATTIS. (Attachments: # 1 Text of Proposed Order)(Wyer, Kathryn) (Entered: 01/12/2018)
38 ORDER granting 36 Petitioner's Motion for Leave to Continue Under Pseudonym. Signed by Judge Tanya S. Chutkan on 1/12/2018. (lctsc2). (Entered: 01/12/2018)
MINUTE ORDER: The court will hold a hearing on Petitioner's Motion Regarding Continued Interim Relief (ECF No. 32 ) on Thursday, January 18, 2018 at 11:30 a.m. Signed by Judge Tanya S. Chutkan on 1/12/2018. (lctsc2). (Entered: 01/12/2018)
39 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Dror Ladin, :Firm− American Civil Liberties Union Foundation, :Address− 125 Broad St., 18th Floor, New York, NY 10004. Phone No. − 212−284−7303. Fax No. − 212−549−2654 Filing fee $ 100, receipt number 0090−5285885. Fee Status: Fee Paid. by AMERICAN CIVIL LIBERTIES UNION FOUNDATION (Attachments: # 1 Declaration of Dror Ladin)(Hafetz, Jonathan) (Entered: 01/12/2018)
40 NOTICE of Proposed Order by AMERICAN CIVIL LIBERTIES UNION FOUNDATION re 39 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Dror Ladin, :Firm− American Civil Liberties Union Foundation, :Address− 125 Broad St., 18th Floor, New York, NY 10004. Phone No. − 212−284−7303. Fax No. −

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212−549−2654 Filing fee (Hafetz, Jonathan) (Entered: 01/12/2018)
MINUTE ORDER: Granting 39 Motion for Leave to Appear Pro Hac Vice. Attorney Dror Ladin is hereby admitted pro hac vice to appear in this matter on behalf of the ACLU, as next friend on behalf of Unnamed U.S. Citizen in U.S. Military Detention. Signed by Judge Tanya S. Chutkan on 1/12/18. (DJS) (Entered: 01/12/2018)
41 ORDER: It is hereby ordered that the government shall file a Return to the Petition for a Writ of Habeas Corpus (ECF No. 4) by Monday, January 22, 2018 at noon. Petitioner's reply to the government's Return, if any, is due by Wednesday, January 24, 2018 at noon. Signed by Judge Tanya S. Chutkan on 1/12/2018. (lctsc2). (Entered: 01/12/2018)
42 NOTICE of Appearance by James Mahoney Burnham on behalf of JAMES N. MATTIS (Burnham, James) (Entered: 01/16/2018)
Set/Reset Deadlines: Return to the Petition for a Writ of Habeas Corpus (ECF no. 4) due by 1/22/2018. Reply due by 1/24/2018. (tb) (Entered: 01/17/2018)
Set/Reset Hearings: Motion Hearing [Regarding Petitioner's Motion for Continued Interim Relief (ECF No. 32)] is set for 1/18/2018 at 11:30 AM in Courtroom 9 before Judge Tanya S. Chutkan. (jth) (Entered: 01/17/2018)
Minute Entry for Proceedings held before Judge Tanya S. Chutkan: Motion Hearing held on 1/18/2018 re: Petitioner's 32 Motion Regarding Continued Interim Relief filed by AMERICAN CIVIL LIBERTIES UNION FOUNDATION. The Motion 32 was Heard and Taken Under Advisement. The Government shall file a Supplemental Memorandum by the Close of Business today (1/18/2018). (Court Reporter: Cathryn Jones) (jth) (Entered: 01/18/2018)
43 ORDER: The court hereby orders the government to refrain from transferring the detainee until Tuesday, January 23, 2018. Signed by Judge Tanya S. Chutkan on 1/18/2018. (lctsc2). (Entered: 01/18/2018)
MINUTE ORDER: The government's deadline to submit its supplemental brief is hereby extended until 11:30 a.m. on Friday, January 19, 2018.Signed by Judge Tanya S. Chutkan on 1/18/2018. (lctsc2). (Entered: 01/18/2018)
MINUTE ORDER: The court will hold a hearing regarding Petitioner's Petition for a Writ of Habeas Corpus (ECF No. 4 ) on Monday, January 29, 2018 at 3:00 p.m. Signed by Judge Tanya S. Chutkan on 1/19/2018.(lctsc2). (Entered: 01/19/2018)
Set/Reset Hearings: Motion Hearing set for 1/29/2018 at 03:00 PM in Courtroom 9 before Judge Tanya S. Chutkan. (tb) (Entered: 01/19/2018)
MINUTE ORDER: The court will hold a status hearing on Monday, January 22, 2018 at 4:00 p.m. Signed by Judge Tanya S. Chutkan on 1/19/2018. (lctsc2). (Entered: 01/19/2018)
44 NOTICE of Ex Parte Filing by JAMES N. MATTIS (Wyer, Kathryn) (Entered: 01/19/2018)
45 SEALED DOCUMENT filed by JAMES N. MATTIS(This document is SEALED and only available to authorized persons.) (Attachments: # 1 Sealed Filing)(Wyer, Kathryn) (Entered: 01/19/2018)
46 SEALED DOCUMENT filed by JAMES N. MATTIS(This document is SEALED and only available to authorized persons.) (Attachments: # 1 Sealed Document, # 2 Sealed Document, # 3 Sealed Document, # 4 Sealed Document, # 5 Sealed Document)(Wyer, Kathryn) (Entered: 01/22/2018)
47 SEALED DOCUMENT filed by AMERICAN CIVIL LIBERTIES UNION FOUNDATION re 44 Notice (Other), 45 Sealed Document (This document is SEALED and only available to authorized persons.)(Hafetz, Jonathan) (Entered: 01/22/2018)
48 WITHDRAWN PURSUANT TO DOCKET ENTRY NO. 69 . . . . . MOTION to Unseal Document 47 Sealed Document filed by AMERICAN CIVIL LIBERTIES UNION FOUNDATION, 45 Sealed Document filed by JAMES N. MATTIS by

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AMERICAN CIVIL LIBERTIES UNION FOUNDATION (Attachments: # 1 Text of Proposed Order)(Hafetz, Jonathan) Modified on 2/16/2018 (td). (Entered: 01/22/2018)
49 SEALED DOCUMENT filed by JAMES N. MATTIS(This document is SEALED and only available to authorized persons.) (Attachments: # 1 SEALED DOCUMENT)(Wyer, Kathryn) (Entered: 01/22/2018)
50 NOTICE of Appearance by Terry Marcus Henry on behalf of JAMES N. MATTIS (Henry, Terry) (Entered: 01/22/2018)
Minute Entry: Status Conference held on 1/22/2018 before Judge Tanya S. Chutkan: The parties will meet and confer and file a proposed briefing schedule. The Court VACATES the petitioner's reply due on 01/24/18 and the motions hearing set for 01/29/18. (Court Reporter Bryan Wayne) (tb) (Entered: 01/23/2018)
51 MEMORANDUM AND OPINION re 32 Petitioner's MOTION Regarding Continued Interim Relief. Signed by Judge Tanya S. Chutkan on 1/23/18. (DJS) (Entered: 01/23/2018)
52 ORDER granting in part and denying in part 32 Petitioner's Motion Regarding Continued Interim Relief. Respondent is hereby ordered to provide the court and Petitioner's counsel seventy−two hours' notice prior to transferring Petitioner, at which time Petitioner may file an emergency motion contesting his transfer. Signed by Judge Tanya S. Chutkan on 1/23/18. (DJS) (Entered: 01/23/2018)
53 PROPOSED BRIEFING SCHEDULE (Joint) by JAMES N. MATTIS. (Wyer, Kathryn) (Entered: 01/26/2018)
54 ORDER adopting the 53 Parties' Proposed Briefing Schedule. Signed by Judge Tanya S. Chutkan on 1/29/2018. (lctsc2). (Entered: 01/29/2018)
Set/Reset Deadlines: Petitioner's response to Respondent's Factual Return due by 2/9/2018. Respondent's memorandum in opposition to Petitioner's Motion to Unseal due by 2/12/2018. Petitioner's reply in support of his Motion to Unseal due by 2/22/2018. (tth) (Entered: 01/30/2018)
55 TRANSCRIPT OF 1/22/18 STATUS HEARING before Judge Tanya S. Chutkan held on January 22, 2018. Page Numbers: 1−35. Date of Issuance: January 31, 2018. Court Reporter: Bryan A. Wayne. Transcripts may be ordered by submitting the Transcript Order Form
For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days , the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.
NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.
Redaction Request due 2/21/2018. Redacted Transcript Deadline set for 3/3/2018. Release of Transcript Restriction set for 5/1/2018.(Wayne, Bryan) (Entered: 01/31/2018)
56 NOTICE OF APPEAL TO DC CIRCUIT COURT as to 52 Order on Motion for Miscellaneous Relief, by JAMES N. MATTIS. Fee Status: No Fee Paid. Parties have been notified. (Wyer, Kathryn) (Entered: 02/02/2018)
57 Transmission of the Notice of Appeal, Order Appealed (Memorandum Opinion), and Docket Sheet to US Court of Appeals. The Court of Appeals docketing fee was not paid because the appeal was filed by the government re 56 Notice of Appeal to DC Circuit Court. (td) (Entered: 02/02/2018)
USCA Case Number 18−5032 for 56 Notice of Appeal to DC Circuit Court filed by JAMES N. MATTIS. (zrdj) (Entered: 02/06/2018)

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58 Consent MOTION to Modify Briefing Schedule as to 48 MOTION to Unseal Document 47 Sealed Document filed by AMERICAN CIVIL LIBERTIES UNION FOUNDATION, 45 Sealed Document filed by JAMES N. MATTIS by JAMES N. MATTIS (Attachments: # 1 Text of Proposed Order)(Wyer, Kathryn) Modified event title on 2/12/2018 (znmw). (Entered: 02/09/2018)
59 RESPONSE re 49 Sealed Document, 46 Sealed Document, to Respondent's Factual Return filed by JOHN DOE. (Attachments: # 1 Appendix)(Hafetz, Jonathan) (Entered: 02/09/2018)
60 MOTION for Leave to File Response to Petitioner's Response to Factual Return by JAMES N. MATTIS (Attachments: # 1 Text of Proposed Order)(Wyer, Kathryn) (Entered: 02/12/2018)
61 RESPONSE re 60 MOTION for Leave to File Response to Petitioner's Response to Factual Return filed by JOHN DOE. (Attachments: # 1 Text of Proposed Order)(Spitzer, Arthur) (Entered: 02/12/2018)
62 NOTICE of Appearance by Olivia R. Hussey Scott on behalf of JAMES N. MATTIS (Scott, Olivia) (Entered: 02/13/2018)
63 ORDER granting 58 Respondent's Consent Motion to Amend Briefing Schedule. Respondent shall file a memorandum in opposition to Petitioners Motion to Unseal by March 5, 2018. Petitioner shall file a reply in support of Petitioners Motion to Unseal by March 19, 2018. Signed by Judge Tanya S. Chutkan on 2/14/2018. (lctsc2). (Entered: 02/14/2018)
Set/Reset Deadlines: Memorandum in opposition to motion to unseal due by 3/5/2018 Reply due by 3/19/2018. (tb) (Entered: 02/14/2018)
64 NOTICE OF FILING REDACTED DOCUMENT to 44 Notice (Other) by JAMES N. MATTIS (The original PDF Document contained privacy information and was restricted pursuant to the E−Government Act.) (Attachments: # 1 ECF 44 (Redacted))(Wyer, Kathryn) (Entered: 02/14/2018)
65 SEALED DOCUMENT filed by JAMES N. MATTIS(This document is SEALED and only available to authorized persons.) (Attachments: # 1 SEALED DOCUMENT)(Wyer, Kathryn) (Entered: 02/14/2018)
66 NOTICE OF FILING REDACTED DOCUMENT to 49 Sealed Document, 46 Sealed Document, by JAMES N. MATTIS (The original PDF Document contained privacy information and was restricted pursuant to the E−Government Act.) (Attachments: # 1 ECF 46 (Redacted), # 2 ECF 49 (Redacted))(Wyer, Kathryn) (Entered: 02/14/2018)
67 NOTICE of Filing Public Version of Previously Sealed Filing by JOHN DOE re 47 Sealed Document (Attachments: # 1 Petitioner Response to Respondent Ex Parte Declaration)(Shamsi, Hina) (Entered: 02/15/2018)
68 NOTICE TO THE COURT CONCERNING RESPONDENT'S SEALED FILING by JOHN DOE re 65 Sealed Document (Hafetz, Jonathan) (Entered: 02/15/2018)
69 NOTICE OF WITHDRAWAL OF MOTION by JOHN DOE re 48 MOTION to Unseal Document 47 Sealed Document filed by AMERICAN CIVIL LIBERTIES UNION FOUNDATION, 45 Sealed Document filed by JAMES N. MATTIS (Hafetz, Jonathan) (Entered: 02/15/2018)
70 ORDER granting in part and denying in part 60 Motion for Leave to File Response. Respondent may file a response of not more than 15 pages to Petitioner's filing (ECF No. 59) on or before February 28, 2018, and Petitioner may file a reply of not more than 10 pages on or before March 14, 2018. Signed by Judge Tanya S. Chutkan on 2/16/2018.(lctsc2). (Entered: 02/16/2018)
Set/Reset Deadlines: Response due by 2/28/2018. Reply due by 3/14/2018. (tb) (Entered: 02/20/2018)
71 NOTICE to the Court Concerning Petitioner's Previous Notice, ECF No. 68 by JOHN DOE re 68 Notice (Other), 65 Sealed Document (Hafetz, Jonathan) (Entered: 02/27/2018)

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72 TRANSCRIPT OF PROCEEDINGS before Judge Tanya S. Chutkan held on January 18, 2018; Page Numbers: 1 − 45. Court Reporter/Transcriber Cathryn Jones, Telephone number 202 354−3246, Transcripts may be ordered by submitting the <a href="http://www.dcd.uscourts.gov/node/110">Transcript Order Form</a><P></P><P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.<P></P> Redaction Request due 3/21/2018. Redacted Transcript Deadline set for 3/31/2018. Release of Transcript Restriction set for 5/29/2018.(Jones, Cathryn) (Main Document 72 replaced on 3/1/2018) (znmw). (Entered: 02/28/2018)
73 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Hope Metcalf, :Address− 127 Wall Street, New Haven, CT 06511. Phone No. − (203) 432−9404. Fax No. − (203) 432−8260 Filing fee $ 100, receipt number 0090−5353019. Fee Status: Fee Paid. by JOHN DOE (Attachments: # 1 Declaration of Hope Metcalf, # 2 Text of Proposed Order)(Hafetz, Jonathan) (Entered: 02/28/2018)
74 RESPONSE re 59 Response to Document filed by JAMES N. MATTIS. (Attachments: # 1 Appendix A)(Wyer, Kathryn) (Entered: 02/28/2018)
MINUTE ORDER: Granting 73 Motion for Leave to Appear Pro Hac Vice. Attorney Hope Richardson Metcalf is hereby admitted pro hac vice to appear in this matter on behalf of Plaintiff. Signed by Judge Tanya S. Chutkan on 3/1/18. (DJS) (Entered: 03/01/2018)
75 TRANSCRIPT OF 12/11/17 STATUS HEARING before Judge Tanya S. Chutkan held on December 11, 2017. Page Numbers: 1−41. Date of Issuance: March 9, 2018. Court Reporter: Bryan A. Wayne. Transcripts may be ordered by submitting the Transcript Order Form
For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.
NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.
Redaction Request due 3/30/2018. Redacted Transcript Deadline set for 4/9/2018. Release of Transcript Restriction set for 6/7/2018.(Wayne, Bryan) (Entered: 03/09/2018)
76 REPLY re 74 Response to Document filed by JOHN DOE. (Hafetz, Jonathan) (Entered: 03/14/2018)
77 SEALED DOCUMENT filed by JAMES N. MATTIS(This document is SEALED and only available to authorized persons.) (Attachments: # 1 SEALED DOCUMENT)(Wyer, Kathryn) (Entered: 04/16/2018)
MINUTE ORDER: No later than 10:15 pm eastern time the USA shall file a notice indicating that it has served a copy of its Sealed Notice 77 on the Petitioner. Signed by Judge Tanya S. Chutkan on 4/16/18. (DJS) (Entered: 04/16/2018)
78 NOTICE of Service by JAMES N. MATTIS re Order (Wyer, Kathryn) (Entered: 04/16/2018)

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MINUTE ORDER: No later than 1:00 pm today 4/17/18, the USA shall file a redacted version of their Sealed Notice 77 . Petitioner shall file a response to the USA's Sealed Notice by 5:00 pm today 4/17/18. A hearing is hereby set for 4/18/18 at 3:30 pm in Courtroom 9. Signed by Judge Tanya S. Chutkan on 4/17/18. (DJS) (Entered: 04/17/2018)
79 MOTION for Extension of Time to File Response/Reply and for Brief Continuance of Hearing by JOHN DOE (Attachments: # 1 Text of Proposed Order)(Kaufman, Brett) (Entered: 04/17/2018)
80 NOTICE OF FILING REDACTED DOCUMENT to Order, by JAMES N. MATTIS (The original PDF Document contained privacy information and was restricted pursuant to the E−Government Act.) (Attachments: # 1 ECF 77 (Redacted))(Wyer, Kathryn) (Entered: 04/17/2018)
MINUTE ORDER: Granting 79 Petitioner's Motion for an Extension of Time to File Response to Respondent's Sealed Notice and for a Brief Continuance of Hearing. Petitioner shall file a response to the USA's Sealed Notice by 12:00 pm tomorrow 4/18/18. The hearing currently set for 4/18/18 at 3:30 pm is hereby rescheduled for 4/19/18 at 10:00 am in Courtroom 9. Signed by Judge Tanya S. Chutkan on 4/17/2018. (lctsc2). (Entered: 04/17/2018)
Set/Reset Deadlines/Hearings: Redacted version of 77 due by 4/17/2018. Response due by 5:00 p.m. today. Status Conference set for 4/18/2018 at 03:30 PM in Courtroom 9 before Judge Tanya S. Chutkan. (tb) (Entered: 04/17/2018)
Set/Reset Deadlines/Hearings: Response to Respondent's Sealed Notice due by 12:00 p.m. on 4/18/2018 Motion Hearing RESCHEDULED to 4/19/2018 at 10:00 AM in Courtroom 9 before Judge Tanya S. Chutkan. (tb) (Entered: 04/17/2018)
81 SEALED MOTION filed by JOHN DOE (Attachments: # 1 Memorandum in Support of Petitioner's Application for a Temporary Restraining Order and Motion for a Preliminary Injunction, # 2 Text of Proposed Order for Temporary Restraining Order, # 3 Text of Proposed Order for Preliminary Injunction, # 4 Certificate Required by Local Civil Rule 65.1(a))(Hafetz, Jonathan) (Entered: 04/18/2018)
82 NOTICE OF FILING REDACTED DOCUMENT by JOHN DOE (The original PDF Document contained privacy information and was restricted pursuant to the E−Government Act.) (Attachments: # 1 ECF No. 81 (Redacted), # 2(SEALED PER CHAMBERS) ECF No. 81−1 (Redacted), # 3 ECF No. 81−2 (Redacted), # 4 ECF No. 81−3 (Redacted), # 5 ECF No. 81−4 (Redacted))(Hafetz, Jonathan) Modified on 4/18/2018 (ztd). (Entered: 04/18/2018)
MINUTE ORDER: The USA shall file its response to Petitioner's Motion for Preliminary Injunction 81 by 9:00 pm tonight 4/18/18. Signed by Judge Tanya S. Chutkan on 4/18/18. (DJS) (Entered: 04/18/2018)
83 NOTICE OF FILING REDACTED DOCUMENT by JOHN DOE (The original PDF Document contained privacy information and was restricted pursuant to the E−Government Act.) (Attachments: # 1 ECF No. 81−1 (Redacted))(Hafetz, Jonathan) (Entered: 04/18/2018)
84 SEALED DOCUMENT filed by JAMES N. MATTIS re Order, 81 SEALED MOTION filed by JOHN DOE (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Sealed Document)(Wyer, Kathryn) (Entered: 04/18/2018)
85 SEALED DOCUMENT filed by JOHN DOE(This document is SEALED and only available to authorized persons.) (Attachments: # 1 Respondent−Appellant Brief, # 2 Petitioner−Appellee Brief, # 3 Respondent−Appellant Reply)(Hafetz, Jonathan) (Entered: 04/18/2018)
86 NOTICE by JOHN DOE re 85 Sealed Document (Hafetz, Jonathan) (Entered: 04/18/2018)
Minute Entry: Preliminary Injunction Hearing held on 4/19/2018 before Judge Tanya S. Chutkan: Argument heard and taken under advisement. Order forthcoming. (Court Reporter Bryan Wayne) (tb) (Entered: 04/19/2018)

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87 (SEALED) MEMORANDUM AND OPINION.. Signed by Judge Tanya S. Chutkan on 4/19/2018. (zmd) Modified on 4/20/2018 to add "sealed" (td). (Entered: 04/19/2018)
88 ORDER GRANTING Petitioner's Motion for Preliminary Injunction. Signed by Judge Tanya S. Chutkan on 4/19/18. (DJS) (Entered: 04/19/2018)
89 NOTICE OF APPEAL TO DC CIRCUIT COURT as to 88 Order by JAMES N. MATTIS. Fee Status: No Fee Paid. Parties have been notified. (Wyer, Kathryn) (Entered: 04/20/2018)
90 Transmission of the Notice of Appeal, Order Appealed (Memorandum Opinion), and Docket Sheet to US Court of Appeals. The Court of Appeals docketing fee was not paid because the appeal was filed by the government re 89 Notice of Appeal to DC Circuit Court. (td) (Entered: 04/20/2018)
MINUTE ORDER: By 4/24/17 the parties shall jointly file a proposed redacted version of the court's Memorandum Opinion 87 for publication on the public docket. Signed by Judge Tanya S. Chutkan on 4/20/18. (DJS) (Entered: 04/20/2018)
USCA Case Number 18−5110 for 89 Notice of Appeal to DC Circuit Court filed by JAMES N. MATTIS. (zrdj) (Entered: 04/23/2018)
91 NOTICE by JAMES N. MATTIS re Order (Attachments: # 1 Memorandum Opinion of April 19, 2018)(Wyer, Kathryn) (Entered: 04/23/2018)
Set/Reset Deadlines: Parties joint proposed redacted version of memorandum opinion due by 4/24/2017. (tb) (Entered: 04/23/2018)
MINUTE ORDER: The court will hold a hearing regarding Petitioner's Petition for a Writ of Habeas Corpus 4 on Wednesday, June 20, 2018 at 10:00 a.m. Signed by Judge Tanya S. Chutkan on 5/15/2018. (lctsc2). (Entered: 05/15/2018)
Set/Reset Hearings: Motion Hearing set for 6/20/2018 at 10:00 AM in Courtroom 9 before Judge Tanya S. Chutkan. (tb) (Entered: 05/16/2018)
92 SEALED DOCUMENT filed by JAMES N. MATTIS(This document is SEALED and only available to authorized persons.) (Attachments: # 1 Sealed Document, # 2 Sealed Document)(Wyer, Kathryn) (Entered: 06/01/2018)
93 NOTICE OF FILING REDACTED DOCUMENT by JAMES N. MATTIS (The original PDF Document contained privacy information and was restricted pursuant to the E−Government Act.) (Attachments: # 1 Redacted Notice, # 2 Redacted Declaration, # 3 Redacted Declaration)(Wyer, Kathryn) (Entered: 06/01/2018)
94 NOTICE by JAMES N. MATTIS (Wyer, Kathryn) (Entered: 06/06/2018)
95 SEALED DOCUMENT filed by JAMES N. MATTIS re 94 Notice (Other) (This document is SEALED and only available to authorized persons.)(Wyer, Kathryn) (Entered: 06/06/2018)
MINUTE ORDER: If Petitioner has any objections to the government's 94 Notice, Petitioner must file an opposition by 11:59 p.m. on June 7, 2018. If needed, the court will hold a hearing on the government's 94 Notice on Friday, June 8, 2018 at 9:00 a.m. Signed by Judge Tanya S. Chutkan on 6/7/2018. (lctsc2). (Entered: 06/07/2018)
Set/Reset Deadlines: Response due 11:59 on 6/7/2018. Hearing set for 6/8/2018 at 09:00 AM in Courtroom 9 before Judge Tanya S. Chutkan. (tb) (Entered: 06/07/2018)
96 NOTICE OF FILING REDACTED DOCUMENT to 95 Sealed Document by JAMES N. MATTIS (The original PDF Document contained privacy information and was restricted pursuant to the E−Government Act.) (Attachments: # 1 Declaration of Mark E. Mitchell (redacted for public filing))(Wyer, Kathryn) (Entered: 06/07/2018)
97 SEALED MOTION filed by JOHN DOE (Attachments: # 1 Memorandum in Support, # 2 Declaration of Jonathan Hafetz, # 3 Text of Proposed Order, # 4 Certificate of Service)(Hafetz, Jonathan) (Entered: 06/07/2018)
MINUTE ORDER: The court hereby orders that the government's response to 97 Petitioner's Sealed Motion is due on June 8, 2018 by 8 a.m. The court will hold a

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hearing on the government's 94 Notice and Petitioner's Sealed Motion on June 8, 2018 at 9:00 a.m. Signed by Judge Tanya S. Chutkan on 6/7/2018. (lctsc2). (Entered: 06/07/2018)
98 NOTICE OF FILING REDACTED DOCUMENT to 97 SEALED MOTION filed by JOHN DOE by JOHN DOE (The original PDF Document contained privacy information and was restricted pursuant to the E−Government Act.) (Attachments: # 1 Memorandum in Support, # 2 Declaration of Jonathan Hafetz, # 3 Text of Proposed Order, # 4 Certificate of Service)(Hafetz, Jonathan) (Entered: 06/07/2018)
99 SEALED OPPOSITION filed by JAMES N. MATTIS. re 97 SEALED MOTION filed by JOHN DOE (Attachments: # 1 Text of Proposed Order)(Wyer, Kathryn) (Entered: 06/08/2018)
Minute Entry: Status Conference held on 6/8/2018 before Judge Tanya S. Chutkan: Consistent with the court's oral order during the June 8, 2018 hearing, the parties are hereby ordered to submit supplemental briefing regarding Respondent's 94 Notice and 97 Petitioner's Sealed Motion. Respondent's supplemental briefing is due on or before Thursday, June 14, 2018. Petitioner's response to Respondent's supplemental submission is due on or before Tuesday, June 19, 2018. Instead of holding the hearing on 4 Petitioner's Petition for a Writ of Habeas Corpus on June 20, 2018, the court will hold a hearing regarding the parties' supplemental submissions on June 20, 2018. After the court has ruled on Petitioner's Sealed Motion, the court will determine whether a hearing needs to be held on the Petition for a Writ of Habeas Corpus.(Court Reporter Bryan Wayne) (tb) Modified on 6/8/2018 (tb). (Entered: 06/08/2018)
Set/Reset Deadlines: Respondent's Supplemental Brief due by 6/14/2018. Petitioner's Response due by 6/19/2018. (tb) (Entered: 06/11/2018)
100 TRANSCRIPT OF 6/8/18 STATUS HEARING before Judge Tanya S. Chutkan held on June 8, 2018. Page Numbers: 1−29. Date of Issuance: June 12, 2018. Court Reporter: Bryan A. Wayne. Transcripts may be ordered at www.dcd.uscourts.gov. For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (PDF, condensed, CD or ASCII) may be purchased from the court reporter.NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov. Redaction Request due 7/3/2018. Redacted Transcript Deadline set for 7/13/2018. Release of Transcript Restriction set for 9/10/2018.(Wayne, Bryan) (Entered: 06/12/2018)
101 SEALED DOCUMENT filed by JAMES N. MATTIS re Status Conference,,, (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Declaration, # 2 Declaration, # 3 Declaration, # 4 Declaration)(Wyer, Kathryn) (Entered: 06/14/2018)
102 Consent MOTION for Protective Order by JAMES N. MATTIS (Attachments: # 1 Protective Order)(Wyer, Kathryn) (Entered: 06/15/2018)
103 PROTECTIVE ORDER setting forth procedures for handling confidential information and documents. Signed by Judge Tanya S. Chutkan on 6/15/2018. (lctsc2). (Entered: 06/15/2018)
104 Joint MOTION for Scheduling Order , Joint MOTION to Continue the June 20 Hearing by JOHN DOE (Attachments: # 1 Text of Proposed Order)(Hafetz, Jonathan) (Entered: 06/19/2018)
MINUTE ORDER: The parties' 104 Joint Motion for Entry of Revised Scheduling Order and Application for a Continuance is hereby GRANTED. The Petitioner shall file his motion for preliminary injunction and response to Respondent's supplemental memorandum by June 22, 2018. Respondent shall file his opposition to Petitioner's motion for a preliminary injunction by June 29, 2018. Petitioner shall file his reply to Respondent's opposition to Petitioner's motion for a preliminary injunction by July 3,

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2018. The hearing scheduled for June 20, 2018 is continued until July 13, 2018 at 10:00 a.m. It is further ordered that Respondent shall file redacted versions of 99 Respondent's Memorandum in Opposition to Petitioner's Application for a Temporary Restraining Order and 101 Respondent's Supplemental Memorandum in Opposition to Petitioner's Application for a Temporary Restraining Order by June 22, 2018. Signed by Judge Tanya S. Chutkan on 6/19/2018. (lctsc2). (Entered: 06/19/2018)
Set/Reset Deadlines/Hearings: Response to respondent's supplemental memorandum due by 6/22/2018. Motion due by 6/22/2018. Response due by 6/29/2018 Motion Hearing set for 7/13/2018 at 10:00 AM in Courtroom 9 before Judge Tanya S. Chutkan. (tb) (Entered: 06/20/2018)
105 NOTICE OF FILING REDACTED DOCUMENT to 99 Sealed Opposition, 101 Sealed Document by JAMES N. MATTIS (The original PDF Document contained privacy information and was restricted pursuant to the E−Government Act.) (Attachments: # 1 ECF No. 99 (redacted), # 2 ECF No. 101 (redacted))(Wyer, Kathryn) (Entered: 06/22/2018)
106 SEALED MOTION filed by JOHN DOE (Attachments: # 1 Memorandum in Support, # 2 Declaration of Jonathan Hafetz, # 3 Declaration of Donald J. Guter, # 4 Declaration of Noah Bonsey, # 5 Declaration of Sara Kayyali, # 6 Text of Proposed Order)(Hafetz, Jonathan) (Entered: 06/22/2018)
107 SEALED Response filed by JOHN DOE. re 101 Supplemental Memorandum in Opposition to Petitioner's Application for a Temporary Restraining Order filed by JAMES N. MATTIS. (This document is SEALED and only available to authorized persons.) (See Docket Entry 106 to view document)(zjf) (Entered: 06/25/2018)
109 MANDATE of USCA as to 56 Notice of Appeal to DC Circuit Court filed by JAMES N. MATTIS ; USCA Case Number 18−5032. (Attachments: # 1 USCA Judgment)(ztd) (Entered: 07/02/2018)
108 SEALED OPPOSITION filed by JAMES N. MATTIS. re 106 SEALED MOTION filed by JOHN DOE (Attachments: # 1 Sealed Document, # 2 Text of Proposed Order)(Wyer, Kathryn) (Entered: 06/29/2018)
110 Consent MOTION for Extension of Time to File Response/Reply as to 106 SEALED MOTION filed by JOHN DOE, 97 SEALED MOTION filed by JOHN DOE by JOHN DOE (Attachments: # 1 Text of Proposed Order)(Hafetz, Jonathan) (Entered: 07/02/2018)
ORDER granting 110 Petitioner's Consent Motion for Extension of Time to File Reply to Respondent's Opposition to Petitioner's Motion for a Preliminary Injunction. Petitioner's Reply is due on July 6, 2018. Signed by Judge Tanya S. Chutkan on 7/2/2018. (lctsc2). (Entered: 07/02/2018)
Set/Reset Deadlines: Petitioner's Reply is due on 7/6/2018. (jth) (Entered: 07/03/2018)
MINUTE ORDER: Petitioner shall file a redacted version of 106 Petitioner's Sealed Motion and Respondent shall file a redacted version of 108 Respondent's Sealed Opposition by Wednesday, July 11, 2018. The parties are hereby ordered to file redacted versions of all future sealed filings. Signed by Judge Tanya S. Chutkan on 7/5/2018. (lctsc2). (Entered: 07/05/2018)
111 SEALED REPLY TO OPPOSITION filed by JOHN DOE re 106 SEALED MOTION filed by JOHN DOE (This document is SEALED and only available to authorized persons.)(Hafetz, Jonathan) (Entered: 07/06/2018)
112 NOTICE OF FILING Public REDACTED DOCUMENT by JOHN DOE re 106 SEALED MOTION filed by JOHN DOE (Attachments: # 1 Motion for PI, # 2 Memorandum in Support, # 3 Supplemental Declaration of Jonathan Hafetz, # 4 Declaration of Donald J. Guter, # 5 Declaration of Noah Bonsey, # 6 Declaration of Sara Kayyali, # 7 Text of Proposed Order)(Hafetz, Jonathan) Modified on 7/13/2018 (ztd). (Entered: 07/09/2018)
113 NOTICE of Filing Public Version of Sealed Filing by JAMES N. MATTIS re Order, (Attachments: # 1 Redacted Version of ECF 108 for Public Filing)(Scott, Olivia) (Entered: 07/11/2018)

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114 NOTICE OF FILING REDACTED DOCUMENT by JOHN DOE re 111 Sealed Reply (Attachments: # 1 Reply Memorandum in Support of Motion for PI)(Hafetz, Jonathan) (Entered: 07/13/2018)
Minute Entry: Motions Hearing held on 7/13/2018 before Judge Tanya S. Chutkan: Petitioner's motion for preliminary injunction; heard and taken under advisement. (Court Reporter Lisa Edwards) (tb) (Entered: 07/13/2018)
115 Joint STATUS REPORT by JAMES N. MATTIS. (Wyer, Kathryn) (Entered: 07/19/2018)
MINUTE ORDER: In light of the parties' 115 Joint Status Report, the court will hold in abeyance any ruling on Petitioner's pending 106 Motion for Preliminary Injunction for ten days while the parties continue settlement discussions. The parties shall file another Joint Status Report by July 30, 2018. Signed by Judge Tanya S. Chutkan on 7/20/2018. (lctsc2). (Entered: 07/20/2018)
Set/Reset Deadlines: Joint Status Report due by 7/30/2018. (tb) (Entered: 07/23/2018)
116 Joint STATUS REPORT by JOHN DOE. (Hafetz, Jonathan) (Entered: 07/30/2018)
MINUTE ORDER: In light of the parties' 116 Joint Status Report, the court will continue to hold in abeyance any ruling on Petitioner's pending 106 Motion for Preliminary Injunction. The parties shall file another Joint Status Report by August 13, 2018. Signed by Judge Tanya S. Chutkan on 7/31/2018.(lctsc2). (Entered: 07/31/2018)
Set/Reset Deadlines: Joint Status Report due by 8/13/2018. (tb) (Entered: 08/01/2018)
117 Joint STATUS REPORT by JAMES N. MATTIS. (Wyer, Kathryn) (Entered: 08/13/2018)
MINUTE ORDER: In light of the parties' 117 Joint Status Report, the court will continue to hold in abeyance any ruling on Petitioner's pending 106 Motion for Preliminary Injunction. The parties shall file another Joint Status Report by August 27, 2018. Signed by Judge Tanya S. Chutkan on 8/13/2018. (lctsc2). (Entered: 08/13/2018)
Set/Reset Deadlines: Joint Status Report due by 8/27/2018. (tb) (Entered: 08/14/2018)
118 Joint STATUS REPORT by JAMES N. MATTIS. (Wyer, Kathryn) (Entered: 08/27/2018)
MINUTE ORDER: In light of the parties' 118 Joint Status Report, the court will continue to hold in abeyance any ruling on Petitioner's pending 106 Motion for Preliminary Injunction. The parties shall file another Joint Status Report by September 12, 2018. Signed by Judge Tanya S. Chutkan on 8/28/2018. (lctsc2). (Entered: 08/28/2018)
Set/Reset Deadlines: Joint Status Report due by 9/12/2018. (tb) (Entered: 08/28/2018)
119 Joint STATUS REPORT by JAMES N. MATTIS. (Wyer, Kathryn) (Entered: 09/12/2018)
MINUTE ORDER: In light of the parties' 119 Joint Status Report, the court will continue to hold in abeyance any ruling on Petitioner's pending 106 Motion for Preliminary Injunction. The parties shall file another Joint Status Report by September 26, 2018. Signed by Judge Tanya S. Chutkan on 9/12/18. (lctsc2). (Entered: 09/12/2018)
Set/Reset Deadlines: Joint Status Report due by 9/26/2018. (tb) (Entered: 09/13/2018)
120 Joint STATUS REPORT by JAMES N. MATTIS. (Wyer, Kathryn) (Entered: 09/26/2018)
MINUTE ORDER: In light of the parties' 120 Joint Status Report, the court will continue to hold in abeyance any ruling on Petitioner's pending 106 Motion for Preliminary Injunction. The parties shall file another Joint Status Report by October 10, 2018. Signed by Judge Tanya S. Chutkan on 9/27/2018. (lctsc2). (Entered: 09/27/2018)

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Set/Reset Deadlines: Joint Status Report due by 10/10/2018. (tb) (Entered: 10/01/2018)
121 NOTICE of Change of Address by Kathryn L. Wyer (Wyer, Kathryn) (Entered: 10/10/2018)
122 Joint STATUS REPORT by JAMES N. MATTIS. (Wyer, Kathryn) (Entered: 10/10/2018)
123 NOTICE of Change of Address by Terry Marcus Henry (Henry, Terry) (Entered: 10/10/2018)
MINUTE ORDER: In light of the parties' 122 Joint Status Report, the court will continue to hold in abeyance any ruling on Petitioner's pending 106 Motion for Preliminary Injunction. The parties shall file another Joint Status Report by October 24, 2018. Signed by Judge Tanya S. Chutkan on 10/10/2018. (lctsc2). (Entered: 10/10/2018)
Set/Reset Deadlines: Joint Status Report due by 10/24/2018. (tb) (Entered: 10/12/2018)
124 Joint STATUS REPORT by JAMES N. MATTIS. (Wyer, Kathryn) (Entered: 10/24/2018)
MINUTE ORDER: In light of the parties' Joint Status Report 124 , the court will continue to hold in abeyance any ruling on Petitioner's pending Motion for Preliminary Injunction 106 . The parties shall file another Joint Status Report by November 7, 2018. Signed by Judge Tanya S. Chutkan on 17−cv−2069. (lctsc1) (Entered: 10/25/2018)
Set/Reset Deadlines: Joint Status Report due by 11/7/2018. (tb) (Entered: 10/30/2018)
125 STIPULATION of Dismissal by JAMES N. MATTIS. (Wyer, Kathryn) (Entered: 11/07/2018)
ORDER OF DISMISSAL: Dismissing action with prejudice. Signed by Judge Tanya S. Chutkan on 11/7/18. (DJS) (Entered: 11/07/2018)
126 ORDER OF DISMISSAL: Dismissing action with prejudice. Signed by Judge Tanya S. Chutkan on 11/7/18. (DJS) (Entered: 11/07/2018)
127 Unopposed MOTION for Extension of Time to Comply with Protective Order by JOHN DOE (Attachments: # 1 Text of Proposed Order)(Spitzer, Arthur) (Entered: 12/27/2018)
128 ORDER granting 127 Unopposed Motion for Extension of Time to Destroy Documents. Signed by Judge Tanya S. Chutkan on 1/1/19. (DJS) (Entered: 01/01/2019)
Set/Reset Deadlines: The deadline for Petitioner to comply with the requirements of paragraph 20 of the Protective Order (Dkt. #103) and destroy documents is extended until 3/7/2019. (jth) (Entered: 01/01/2019)
129 Unopposed MOTION for Extension of Time to Comply with Protective Order by JOHN DOE (Attachments: # 1 Text of Proposed Order)(Hafetz, Jonathan) (Entered: 02/27/2019)
130 ORDER granting 129 Motion for Extension of Time to Comply with Protective Order. Any motion by Plaintiff challenging Respondent's continued designation of certain material as protected must be fled by April 8, 2019. Signed by Judge Tanya S. Chutkan on 2/28/19. (DJS) (Main Document 130 replaced on 3/1/2019) (ztb). (Entered: 02/28/2019)
Set/Reset Deadlines: Motion challenging continued designation of certain material as protected due by 4/8/2019. (tb) (Entered: 03/01/2019)
131 SEALED MOTION filed by JOHN DOE (Attachments: # 1 Text of Proposed Order)(Kaufman, Brett) (Entered: 04/08/2019)

04/08/2019
04/16/2019 04/16/2019 04/17/2019 04/30/2019

132 NOTICE OF FILING OF REDACTED DOCUMENTS by JOHN DOE re 131 SEALED MOTION filed by JOHN DOE (Attachments: # 1 Redacted Version of ECF No. 131, # 2 Redacted Version of ECF No. 131−1)(Kaufman, Brett) (Entered: 04/08/2019)
133 Consent MOTION for Extension of Time to File Response/Reply as to 131 SEALED MOTION filed by JOHN DOE by JAMES N. MATTIS (Attachments: # 1 Text of Proposed Order)(Wyer, Kathryn) (Entered: 04/16/2019)
MINUTE ORDER: Granting 133 Motion for Extension of Time to File Response/Reply. Defendant's Response due May 13, 2018. Signed by Judge Tanya S. Chutkan on 4/16/19. (DJS) (Entered: 04/16/2019)
Set/Reset Deadlines: Response due by 5/13/2018. (tb) (Entered: 04/17/2019)
134 TRANSCRIPT OF MOTIONS HEARING before Judge Tanya S. Chutkan held on July 13, 2018; Page Numbers: 1−62. Date of Issuance: April 30, 2019. Court Reporter/Transcriber: Lisa Edwards. Telephone number (202) 354−3269. Transcripts may be ordered by submitting the Transcript Order Form

For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter r eferenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

05/06/2019 05/08/2019 05/15/2019 05/16/2019 05/21/2019 05/24/2019 06/04/2019 06/05/2019

Redaction Request due 5/21/2019. Redacted Transcript Deadline set for 5/31/2019. Release of Transcript Restriction set for 7/29/2019.(Edwards, Lisa) (Entered: 04/30/2019)
135 SEALED TRANSCRIPT OF MOTIONS HEARING before Judge Tanya S. Chutkan held on July 13, 2018; Page Numbers: 1−49. Court Reporter/Transcriber: Lisa Edwards. Telephone number (202) 354−3269. (This document is SEALED and only available to authorized persons.)(zrdj) (Entered: 05/06/2019)
136 Joint MOTION for Extension of Time to File Response/Reply as to 131 SEALED MOTION filed by JOHN DOE by JOHN DOE (Attachments: # 1 Text of Proposed Order)(Kaufman, Brett) (Entered: 05/08/2019)
MINUTE ORDER: Granting 136 Motion for Extension of Deadlines. Respondent shall file a response to Petitioner's motion to unseal on or before May 21, 2019, and Petitioner shall file a reply on or before June 7, 2019. Signed by Judge Tanya S. Chutkan on 5/15/19. (DJS) (Entered: 05/15/2019)
Set/Reset Deadlines: Response due by 5/21/2019. Reply due by 6/7/2019. (tb) (Entered: 05/16/2019)
137 SEALED OPPOSITION filed by JAMES N. MATTIS. re 131 SEALED MOTION filed by JOHN DOE (Attachments: # 1 Sealed Document, # 2 Text of Proposed Order)(Wyer, Kathryn) (Entered: 05/21/2019)
138 NOTICE of Filing Redacted Documents by JAMES N. MATTIS re 137 Sealed Opposition (Attachments: # 1 Memorandum in Opposition to Motion to Unseal, # 2 Third Declaration of Mark E. Mitchell, # 3 Text of Proposed Order)(Wyer, Kathryn) (Entered: 05/24/2019)
139 Consent MOTION for Extension of Time to File Response/Reply as to 131 SEALED MOTION filed by JOHN DOE by JOHN DOE (Attachments: # 1 Text of Proposed Order)(Kaufman, Brett) (Entered: 06/04/2019)
MINUTE ORDER: Granting 139 Motion for Extension of Time to File Response/Reply. Petitioner's reply in support of motion to unseal due June 21, 2019.

06/07/2019 06/21/2019
06/23/2019
06/24/2019 07/08/2019
07/08/2019

Signed by Judge Tanya S. Chutkan on 6/5/19. (DJS) (Entered: 06/05/2019)
Set/Reset Deadlines: Reply due by 6/21/2019. (tb) (Entered: 06/07/2019)
140 Consent MOTION for Extension of Time to File Response/Reply as to 131 SEALED MOTION filed by JOHN DOE by JOHN DOE (Attachments: # 1 Text of Proposed Order)(Kaufman, Brett) (Entered: 06/21/2019)
MINUTE ORDER: Granting 140 Consent Motion for Extension of Deadlines. Petitioner's Reply in support of the Motion to Unseal 131 is due by July 8, 2019. Signed by Judge Tanya S. Chutkan on 6/23/19. (DJS) (Entered: 06/23/2019)
Set/Reset Deadlines: Reply due by 7/8/2019. (tb) (Entered: 06/24/2019)
141 Consent MOTION to Hold in Abeyance re 131 SEALED MOTION filed by JOHN DOE by JOHN DOE (Attachments: # 1 Text of Proposed Order)(Kaufman, Brett) (Entered: 07/08/2019)
MINUTE ORDER: Granting 141 Order on Motion. Briefing on Petitioner's Motion to Unseal 131 is hereby STAYED pending further order of the court. Signed by Judge Tanya S. Chutkan on 7/8/19. (DJS) (Entered: 07/08/2019)

 
 Case 1:17-cv-02069-TSC Document 1 Filed 10/05/17 Page 1 of 14

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JOHN DOE, and the AMERICAN CIVIL LIBERTIES UNION FOUNDATION, as Next Friend, 125 Broad Street, 18th Floor New York, NY 10004
Petitioners,
v.
GEN. JAMES N. MATTIS, in his official capacity as SECRETARY OF DEFENSE,
1400 Defense Pentagon Washington, DC 20301-1400
Respondent.

Civil Action No. __________

PETITION FOR A WRIT OF HABEAS CORPUS Petitioner John Doe is an American citizen currently being unlawfully detained by the United States military in Iraq without charge, without access to counsel, and without access to a court. The U.S. military has refused to disclose publicly Petitioner’s name or location. Respondent, General James N. Mattis, is the United States Secretary of Defense and Petitioner’s ultimate military custodian. Respondent’s failure to present Petitioner to a federal court or to otherwise justify his detention violates the federal habeas corpus statute, 28 U.S.C. § 2241 et seq., the Non-Detention Act of 1971, 18 U.S.C. § 4001(a), and the Fourth, Fifth, and Sixth Amendments to, and the Suspension Clause of, the United States Constitution. It also exceeds any detention authority granted by the Authorization for Use of Military Force, Pub. L. 107-40, 115 Stat. 224 (2001), the Authorization for Use of Military Force against Iraq Resolution of

Case 1:17-cv-02069-TSC Document 1 Filed 10/05/17 Page 2 of 14
2002, Pub. L. No. 107-243, 116 Stat. 1498 (2002), and the National Defense Authorization Act for Fiscal Year 2012, Pub. L. 112-81, 125 Stat. 1298 (2011).
Petitioner, through his next friend, the American Civil Liberties Union Foundation, petitions this Court for a writ of habeas corpus directing Respondent to: (1) provide attorneys from the ACLU Foundation with prompt access to Petitioner to inform Petitioner of his legal rights and to afford him the opportunity of legal assistance; (2) transfer Petitioner into civilian law-enforcement custody to face criminal charges or release him; (3) provide Petitioner with a meaningful opportunity to challenge his detention before a federal judge; and, (4) halt any continued interrogation of Petitioner.
PARTIES 1. Petitioner John Doe (“Petitioner”), a citizen of the United States, is currently being detained by the U.S. military in Iraq. The U.S. military has detained Petitioner since on or around September 14, 2017. The U.S. military has not disclosed publicly Petitioner’s name or the place of his detention, and has not provided Petitioner with access to a court or to counsel.
2. Respondent General James N. Mattis (“Respondent”) is the United States
Secretary of Defense. As the nation’s highest-ranking official in the Department of Defense, Respondent maintains custody and control over Petitioner and is therefore Petitioner’s ultimate military custodian. Secretary Mattis is sued in his official capacity.
3. Next friend the American Civil Liberties Union Foundation (“ACLUF”) employs lawyers who provide legal representation free of charge in cases involving civil liberties, and educates the public about civil liberties. The ACLUF and the American Civil Liberties Union (“ACLU”), a nationwide, non-profit, non-partisan public interest organization of more than 1.6 million members, are both dedicated to defending the civil liberties guarantees by the
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Constitution. The ACLUF has previously represented individuals detained by the United States as “enemy combatants” and sought to vindicate their individual legal and constitutional rights in the federal courts. The ACLU has written to Respondent expressing concern about Petitioner’s unlawful detention and requesting access to Petitioner to inform of him of his rights and provide legal assistance, but Respondent has failed to respond. Because Respondent is denying Petitioner both access to counsel and the ability to challenge his executive detention himself, the ACLUF submits this Petition as next friend of Petitioner to inform Petitioner of his rights and to afford him the opportunity of legal assistance in challenging that detention.
JURISDICTION 4. Respondent is detaining Petitioner under or by color of the authority of the United States and in violation of the Constitution and laws of the United States. Petitioner accordingly brings this action under 28 U.S.C § 2241 et seq. Petitioner further invokes this Court’s jurisdiction under the Federal Question Statute, 28 U.S.C. § 1331, the All Writs Act, 28 U.S.C. § 1651, the Declaratory Judgment Act, 28 U.S.C. §§ 2201–2202, and Article I, Section 9, Clause 2 of the United States Constitution (“Suspension Clause”). 5. This Court is empowered to grant a writ of habeas corpus under 28 U.S.C. § 2241 et seq. and the Suspension Clause, and has the authority to adjudicate this Petition filed by Petitioner’s next friend under 28 U.S.C. § 2242 and the Suspension Clause. This Court has jurisdiction over this Petition pursuant to, inter alia, the Supreme Court’s rulings in Boumediene v. Bush, 553 U.S. 723 (2008), Munaf v. Geren, 553 U.S. 674 (2008), Hamdi v. Rumsfeld, 542 U.S. 507 (2004), and Rasul v. Bush, 542 U.S. 466 (2004).
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VENUE 6. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(e)(1)(A) because Respondent in his official capacity resides in this District, and pursuant to 28 U.S.C. § 1391(e)(1)(B) because a substantial part of the events or omissions giving rise to the claim occurred in this District.
STATEMENT OF FACTS 7. The Defense Department has been detaining Petitioner, a U.S. citizen, since on or around September 14, 2017, after Syrian forces transferred him to U.S. custody. See Betsy Woodruff & Spencer Ackerman, U.S. Military: American Fighting for ISIS ‘Surrenders’, Daily Beast (Sept. 14, 2017), www.thedailybeast.com/us-military-american-isis-fighter-reportedlysurrenders; Ryan Browne, US citizen fighting for ISIS captured in Syria, CNN.com (Sept. 14, 2017), www.cnn.com/2017/09/14/politics/us-citizen-isis-captured-syria/index.html. 8. The Defense Department is presently detaining Petitioner in Iraq. See Lolita C. Baldor, Red Cross will soon see American IS fighter held in Iraq, Associated Press (Sept. 28, 2017), www.apnews.com/52f60506d1a54ed0b9414ab4369e1a1a/Red-Cross-will-soon-seeAmerican-IS-fighter-held-in-Iraq. 9. The Defense Department asserts it is detaining Petitioner because he allegedly was fighting for the Islamic State of Iraq and Syria (“ISIS”) in Syria. See Browne, supra. 10. The Defense Department has not publicly disclosed Petitioner’s identity. 11. The Defense Department has not publicly disclosed the name or location of the facility where Petitioner is being detained. 12. The Defense Department has labeled Petitioner an “enemy combatant.” See Baldor, supra.
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13. The Defense Department is holding Petitioner without charge, without access to a court or other meaningful opportunity to challenge his detention before a neutral decisionmaker, and without access to counsel.
14. On September 28, a Defense Department official stated that the International Committee of the Red Cross (“ICRC”) had been notified of Petitioner’s detention, see id., and on October 2, the ICRC confirmed that it had met with Petitioner, see Josh Gerstein, Red Cross confirms visit with American captured in Syria, Politico (Oct. 3, 2017), www.politico.com/story/2017/10/02/red-cross-american-syria-isis-243381.
15. In accordance with the ICRC’s strict policy of confidentiality, the ICRC did not provide publicly any details about Petitioner’s identity, location, or conditions of detention. See Gerstein, supra.
16. The ICRC does not serve as or replace legal counsel. 17. On information and belief, the Defense Department has not notified any member of Petitioner’s family of his detention or provided any member of Petitioner’s family with access to him. 18. On information and belief, the Defense Department has not notified any individual or organization capable of providing legal assistance to Petitioner of Petitioner’s detention or provided any such individual or organization with access to Petitioner. 19. On September 29, the ACLU sent via facsimile a letter to Respondent Mattis and to Attorney General Jeff Sessions expressing deep concern about Petitioner’s detention, and the fact that the detention violates the Constitution, federal statues, and international law. See ACLU Letter to Trump Administration on Detained American Suspected of Fighting for ISIS (Sept. 29, 2017), available at www.aclu.org/letter/aclu-letter-trump-administration-detained-
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american-suspected-fighting-isis. The ACLU urged that if the U.S. government has grounds to suspect Petitioner of fighting with ISIS, Respondent Mattis should transfer Petitioner without further delay to the United States to face charges in the federal criminal justice system in a proceeding governed by the constitutional safeguards due to all criminal defendants. The ACLU emphasized that regardless of the claimed source of detention authority, Petitioner has a constitutional right to counsel. The ACLU further informed Respondent Mattis that ACLU attorneys are available to advise Petitioner of his rights and to assist him in securing legal representation, and urged Respondent Mattis to provide that access. The ACLU has not received a response to its letter.
20. Petitioner is being detained indefinitely without access to a lawyer, without access to any court, and without a meaningful opportunity to challenge his detention before a neutral decisionmaker.
21. The Defense Department has not indicated whether, or for how long, it will continue Petitioner’s military detention. The United States government has previously asserted, and continues to assert, legal authority to detain “enemy combatants,” including U.S. citizens, indefinitely.
22. The Defense Department has referred questions regarding Petitioner to the Department of Justice, indicating that transfer of Petitioner for prosecution in the federal civilian criminal justice system is at least one option being considered. See Karen DeYoung, Pentagon: U.S. citizen fighting with ISIS has been captured in Syria, Wash. Post (Sept. 14, 2017), www.wapo.st/2eZmSxu.
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THE LACK OF AUTHORITY TO DETAIN PETITIONER IN MILITARY CUSTODY 23. The Non-Detention Act of 1971, 18 U.S.C. § 4001(a), provides, “No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.” 24. Only three sources of domestic legal authority could potentially justify Petitioner’s detention: (1) the Authorization for Use of Military Force, Pub. L. 107-40, 115 Stat. 224 (2001) (“2001 AUMF”), in conjunction with the National Defense Authorization Act for Fiscal Year 2012, Pub. L. 112-81, 125 Stat. 1298 (2011) (“2012 NDAA”) (clarifying the scope of AUMF detention authority); (2) the Authorization for Use of Military Force against Iraq Resolution of 2002, Pub. L. No. 107-243, 116 Stat. 1498 (2002) (“2002 AUMF”); or (3) pre-trial detention authority exercised by a court in connection with properly filed criminal charges. 25. The 2001 AUMF provides: “[T]he President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” 2001 AUMF § 2(a). 26. As the Supreme Court stated, the 2001 AUMF gives the President the power to use force only “for the duration of the relevant conflict,” and the scope and exercise of any detention authority must conform to the Constitution and to international humanitarian law (“IHL”). See Hamdi v. Rumsfeld, 542 U.S. 507, 521 (2004); accord Boumediene v. Bush, 553 U.S. 723, 733 (2008) (discussing Hamdi).
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27. In the 2012 NDAA, Congress confirmed that the President’s authority to use necessary and appropriate military force includes the authority to detain covered persons consistent with IHL. See 2012 NDAA § 1021(a). The 2012 NDAA defines a covered person as someone who: 1) “planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks”; or 2) was “part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners.” Id. § 1021(b). The 2001 AUMF and 2012 NDAA provide no additional detention authority.
28. The 2001 AUMF and the 2012 NDAA authorize, at most, the military detention of individuals who participated in the September 11, 2001 attacks (or harbored the participants) or who were part of or substantially supported al-Qaeda, the Taliban, or associated forces engaged in hostilities with the United States or coalition partners. The United States has made no public allegation that Petitioner was involved in the terrorist attacks of September 11, 2001. The United States has made no public allegation that Petitioner has directly participated in any hostilities against the United States that would fall within the ambit of the 2001 AUMF or 2012 NDAA.
29. Neither the 2001 AUMF nor the 2012 NDAA provides a domestic legal basis to detain an individual, such as Petitioner, based on allegations that he was part of or substantially supported ISIS, a group that did not exist at the time of the 9/11 attacks, that is distinct from alQaeda, and that has, in fact, opposed al-Qaeda.
30. The 2002 AUMF authorized the president to use United States armed forces to “defend the national security of the United States against the continuing threat posed by Iraq”
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and to “enforce all relevant United Nations Security Council resolutions regarding Iraq.” 2002 AUMF § 3(a).
31. The 2002 AUMF is directed specifically at the former Government of Iraq, and does not cover a different armed conflict against a different enemy and different threat.
32. Because Respondent’s detention of Petitioner is not authorized under the terms of the 2001 AUMF, the 2012 NDAA, or the 2002 AUMF, the only lawful basis for U.S. government detention of Petitioner would be pre-trial detention if ordered by an Article III court pursuant to properly filed criminal charges.
CLAIMS FOR RELIEF FIRST CLAIM
(Unauthorized and Unlawful Detention) (Violation of the Federal Habeas Corpus Statute, the Non-Detention Act, the Suspension Clause
of the U.S. Constitution, and the Fifth and Sixth Amendments to the U.S. Constitution) 33. Any authority to detain a U.S. citizen must derive from the Constitution and laws
of the United States. 34. Neither the Constitution nor any other U.S. law authorizes the current military
detention of Petitioner. 35. The Non-Detention Act of 1971, 18 U.S.C. § 4001(a), expressly prohibits the
detention of a U.S. citizen except pursuant to an Act of Congress. 36. Respondent’s detention of Petitioner is not authorized by any Act of Congress and
is not authorized by the 2001 AUMF, the 2012 NDAA, or the 2002 AUMF, the sole possible bases for Petitioner’s military detention.
37. Therefore, the detention of Petitioner by Respondent is in violation of the Constitution and laws of the United States.
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SECOND CLAIM (Unlawful Detention and Denial of Right to Presentment) (Violation of the Fourth Amendment to the U.S. Constitution) 38. The 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. 39. Petitioner’s detention without charge, without probable cause, and without presentment before a judicial officer violates the Fourth Amendment.
THIRD CLAIM (Denial of Access to the Courts and to a Fair and Meaningful Opportunity to Contest His
Detention Before a Neutral Decisionmaker) (Violation of the Suspension Clause, the Fifth Amendment to the U.S. Constitution, the Federal
Habeas Corpus Statute, and International Law) 40. The process due to any U.S. citizen ostensibly detained pursuant to the 2001 AUMF, the 2012 NDAA, and/or the 2002 AUMF must conform to the U.S. Constitution, to federal law, and to international humanitarian and human rights law by which the United States is bound. 41. Under the Suspension Clause of the U.S. Constitution, the Due Process Clause of the Fifth Amendment to the U.S. Constitution, and the provisions of the federal habeas corpus statute set forth at 28 U.S.C. § 2241 et seq., a U.S. citizen must have a meaningful opportunity to challenge his detention before a neutral decisionmaker with the assistance of counsel, even when detained by the military as an alleged “enemy combatant.” 42. Both international humanitarian law and human rights law prohibit arbitrary detention and recognize the right of all detainees to habeas corpus. 43. Respondent’s detention of Petitioner without access to any court, without access to counsel, and without a meaningful opportunity to challenge his detention before a neutral
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decisionmaker violates the Suspension Clause of the U.S. Constitution, the Due Process Clause of the Fifth Amendment to the U.S. Constitution, the provisions of the federal habeas corpus statute set forth at 28 U.S.C. § 2241 et seq., and international law.
FOURTH CLAIM (Denial of Right to Counsel) (Violation of the Federal Habeas Corpus Statute, the Suspension Clause of the U.S. Constitution, and the Fifth and Sixth Amendments to the U.S. Constitution) 44. The Supreme Court has held that U.S. citizens detained as enemy combatants have the right to the assistance of counsel and the right to a meaningful opportunity to challenge their detention before a neutral decisionmaker, even when allegedly captured on a foreign battlefield bearing arms against the United States or its allies. Hamdi, 542 U.S. at 539. 45. Petitioner has the constitutional right to communicate with counsel regarding his legal rights and to the assistance of counsel in challenging his detention. 46. By detaining Petitioner in secret and without the ability to access to counsel, Respondent is violating Petitioner’s right to counsel.
FIFTH CLAIM (Unlawful Detention for Purposes of Interrogation) (Violation of the Fifth and Sixth Amendments to the U.S. Constitution) 47. Upon information and belief, Petitioner was designated an enemy combatant so that the government could interrogate Petitioner while Petitioner was held incommunicado and Petitioner, in fact, has been and continues to be interrogated by the U.S. government. 48. The Supreme Court has stated that detention for purposes of interrogation is prohibited. Hamdi, 542 U.S. at 521. 49. Therefore, the detention and interrogation of Petitioner is in violation of the Constitution and laws of the United States.
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PRAYER FOR RELIEF WHEREFORE, Petitioner respectfully requests that this Court: A. Order Respondent forthwith to permit counsel for next friend the American Civil Liberties Union Foundation to meet and confer with Petitioner in private and unmonitored attorney-client conversations, in person or via videoconferencing, in order for counsel to advise Petitioner of his legal rights and to provide him with legal assistance. B. Order Respondent to make a prompt return to the writ in accordance with 28 U.S.C. § 2243 and the Suspension Clause of the U.S. Constitution. C. Order Respondent to cease all interrogations of Petitioner while this litigation is pending. D. Order Respondent to provide notice to the Court and to counsel for next friend American Civil Liberties Union Foundation prior to any transfer of Petitioner, including, but not limited to, transfer to another U.S.-controlled facility or U.S. jurisdiction, or transfer to the custody of another nation. E. Order Respondents to specify, in the case of any transfer of Petitioner, the receiving facility, jurisdiction, authority, or country. F. Declare that the indefinite detention of Petitioner in military custody is unauthorized, arbitrary, and unlawful, and a deprivation of liberty in violation of the Constitution and laws of the United States. G. Order Respondent to charge Petitioner with a federal criminal offense in an Article III court or release him.
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Case 1:17-cv-02069-TSC Document 1 Filed 10/05/17 Page 13 of 14

H. Grant such other relief as the Court deems necessary and appropriate.

Dated: October 5, 2017

Respectfully submitted,
/s/ Hina Shamsi_____________________
Hina Shamsi (D.C. Bar No. MI0071) Jonathan Hafetz (application for admission
pending) American Civil Liberties Union Foundation 125 Broad Street—18th Floor New York, New York 10004 Phone: 212-549-2500 Fax: 212-549-2654 hshamsi@aclu.org jhafetz@aclu.org
Arthur B. Spitzer (D.C. Bar No. 235960) American Civil Liberties Union
of the District of Columbia 4301 Connecticut Avenue, N.W., Suite 434 Washington, DC 20008 Tel: 202-457-0800 Fax: 202-457-0805 aspitzer@acludc.org
Counsel for Petitioners

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 Case 1:17-cv-02069-TSC Document 8 Filed 10/19/17 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMERICAN CIVIL LIBERTIES UNION FOUNDATION, as Next Friend, on behalf of Unnamed U.S. Citizen in U.S. Military Detention,
Petitioner,
v.
GEN. JAMES N. MATTIS, in his official capacity as SECRETARY OF DEFENSE,
Respondent.

No. 17-cv-2069 (TSC)

ORDER Upon consideration of the Petition for a Writ of Habeas Corpus (ECF No. 4) and the Emergency Motion for Order to Show Cause on Counsel Access (ECF No. 7), the court GRANTS in part and DENIES in part the Emergency Motion, and orders the following: 1. Petitioner American Civil Liberties Union Foundation (“ACLUF”) shall promptly serve a copy of this Order, the Petition for a Writ of Habeas Corpus (ECF No. 4), and the ACLUF’s Emergency Motion for Order to Show Cause on Counsel Access (ECF No. 7) on the Respondent, the U.S. Attorney General, and the U.S. Attorney for the District of Columbia, Special Proceedings Division. 2. Within 10 days of service of this Order, Respondent shall explain, in writing, why Respondent should not give the ACLUF access to the Unnamed U.S. Citizen in Respondent’s custody to advise him of his rights and provide him with the opportunity to obtain legal representation. The ACLUF shall file any reply within 3 days of service of the opposition.

1

Case 1:17-cv-02069-TSC Document 8 Filed 10/19/17 Page 2 of 2 To the extent the court deems a hearing necessary, the court will schedule a hearing on the ACLUF’s Emergency Motion at the court’s earliest convenience. Date: October 19, 2017
Tanya S. Chutkan
TANYA S. CHUTKAN United States District Judge
2

 
 Case 1:17-cv-02069-TSC Document 29 Filed 12/23/17 Page 1 of 12

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

AMERICAN CIVIL LIBERTIES UNION )

FOUNDATION, as Next Friend, on behalf )

of Unnamed U.S. Citizen,

)

)

Petitioner,

)

)

v.

)

)

GEN. JAMES N. MATTIS, in his official )

Capacity as SECRETARY OF DEFENSE, )

)

Respondent.

)

)

Case No. 17-cv-2069 (TSC)

MEMORANDUM OPINION

Somewhere in Iraq, a United States citizen has been in the custody of the U.S. armed

forces for over three months. The detainee, who has been classified as an enemy combatant and

whose name has not been released, was advised of his right to counsel and requested the

assistance of counsel. To date, the detainee remains unnamed, uncharged, and, despite his

request, without access to counsel. This court must now consider whether Petitioner shall be

permitted to proceed in this matter as the detainee’s next friend.

Petitioner American Civil Liberties Union Foundation (“ACLUF”) seeks a writ of habeas

corpus as putative next friend on behalf the detainee.1 (ECF No. 4, Pet.). The Defense

Department has moved to dismiss the petition for lack of subject matter jurisdiction, arguing that

the ACLUF lacks standing to seek habeas relief on the detainee’s behalf, and that the

circumstances do not warrant the ACLUF’s immediate access to the detainee. (ECF No. 11,

1 The court orally granted the ACLUF’s request to proceed pseudonymously nunc pro tunc at the November 30, 2017 hearing. (ECF No. 22, Tr. at 4:23–5:1).
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Mot.). For the reasons stated herein, the court finds that the ACLUF has standing for the limited purpose of ascertaining whether the detainee wishes for it to file a petition on his behalf. Therefore, the court will DENY the Defense Department’s motion to dismiss, and order the Defense Department to provide the ACLUF with temporary, immediate and unmonitored access to the detainee so that it may inquire as to whether he wishes to have the ACLUF or courtappointed counsel continue this action on his behalf. The Defense Department may renew its motion should the court learn that the detainee does not wish for the ACLUF to continue in this action. Finally, the court will order the Defense Department to refrain from transferring the detainee until the ACLUF informs the court of the detainee’s wishes. I. BACKGROUND
On or about September 12, 2017, the detainee, who is a United States citizen, surrendered to Syrian Democratic Forces, who then transferred him to the custody of United States armed forces, who classified him as an enemy combatant. (ECF No. 11-1, Decl. of Steven W. Dalbey ¶ 3). According to the Defense Department, he remains detained within an armed conflict zone with restricted civilian access. (Id.). Other than two visits from representatives of the International Committee of the Red Cross—on September 29, 2017 and October 23, 2017—the detainee has had no contact or communication with anyone except government personnel since his detention. (Id. ¶ 4; Pet. ¶¶ 16–17).
On September 29, the American Civil Liberties Union sent a letter to Secretary of Defense James Mattis and Jefferson Sessions, the United States Attorney General. (Id. ¶ 18). The ACLU expressed its concern regarding the Department’s continuing detention of a United States citizen, and emphasized the detainee’s constitutional right to counsel. (Id.). The ACLU also informed Secretary Mattis that ACLU attorneys were available to advise the detainee of his
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rights and to assist him in securing legal representation. (Id.) The ACLU received no response from either government official. (Id.).
On October 5, the ACLUF filed a petition for a writ of habeas corpus, requesting the court to order the Defense Department to allow counsel for the ACLUF to meet and confer with the detainee so that they may advise him of his legal rights and provide him with legal assistance. (Id. at p. 12). On October 12, the ACLUF filed an Emergency Motion requesting the same relief, noting that the detainee had been in custody for almost a month. (ECF No. 7 at 1). In response to the court’s October 19 order to show case (ECF No. 8), the Defense Department filed a motion seeking dismissal of the petition for lack of standing, or in the alternative, denial of the ACLUF’s request for immediate and unmonitored access to the detainee. (Mot.).
The court held a hearing on the government’s motion to dismiss on November 30, 2017. In response to the court’s inquiry at the hearing as to whether the detainee had been advised of his rights, the Defense Department filed a response in which it disclosed that, during questioning by FBI agents, the detainee was advised of “his right to remain silent and not to answer questions,” and informed of “his right to consult counsel prior to questioning, to have counsel present during questioning, to have counsel appointed for him before questioning if he could not afford a lawyer, and, if he chose to answer questions without counsel present, to stop answering at any time.” (ECF No. 18, Gov’t Nov. 30 Filing at 1–2). The filing further stated:
The individual stated he understood his rights, and said he was willing to talk to the agents but also stated that since he was in a new phase, he felt he should have an attorney present. The agents explained that due to his current situation, it was unknown when he would be able to have an attorney, and the individual stated that it was ok and that he is a patient man. The individual then asked whether when he saw the agents next with his attorney, would it be at his current location or somewhere else. The agents told him they were uncertain when they would see him again. No further questioning for law enforcement purposes has taken place.
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(Id. at 2). The Defense Department has not indicated how long it expects to hold the detainee, other
than to state that it is “still in the process of determining what its final disposition regarding the individual will be.” (Mot. at 21); see also (ECF No. 28) (“The Government continues to work diligently to reach a decision regarding what to do with the detainee, but no final decision has yet been reached.”). On December 21, 2017, the ACLUF filed a copy of a New York Times article, which reported that national security officials may transfer the detainee to Saudi Arabia, and that such a transfer may require him to renounce his U.S. Citizenship. (ECF No. 27). The court ordered the Defense Department to respond to the ACLUF’s notice, but the agency did not confirm or deny whether the detainee will be transferred. (See generally ECF No. 28). II. LEGAL STANDARD
A motion to dismiss a petition for habeas corpus for lack of subject matter jurisdiction is subject to review under Rule 12(b)(1) of the Federal Rules of Civil Procedure. See Rasul v. Bush, 215 F. Supp. 2d 55, 61 (D.D.C. 2002), aff’d, Al Odah v. United States, 321 F.3d 1134 (D.C. Cir. 2003), rev’d on other grounds, Rasul v. Bush, 542 U.S. 466 (2004) (applying Fed. R. Civ. P. 12(b)(1) to the government’s motion to dismiss a pending habeas petition on jurisdictional grounds). Under Rule 12(b)(1), the petitioner bears the burden of establishing the court’s jurisdiction. See Am. Farm Bureau v. U.S. E.P.A., 121 F. Supp. 2d 84, 90 (D.D.C. 2000). The petition should be liberally construed, and the court should view the facts in the light most favorable to the petitioner. See Settles v. U.S. Parole Comm’n, 429 F.3d 1098, 1106 (D.C. Cir. 2005). The court need not limit itself to the allegations in the petition, but may consider any materials outside the pleadings as it deems appropriate to determine whether it has jurisdiction
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over the case. See Jerome Stevens Pharm., Inc. v. Food & Drug Admin., 402 F.3d 1249, 1253 (D.C. Cir. 2005) (citing Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992)). III. DISCUSSION
A. Standing Under Article III of the Constitution, a federal court cannot consider the merits of a claim until the party seeking to invoke the jurisdiction of the court can establish the requisite standing to sue. Whitmore v. Arkansas, 495 U.S. 149, 154 (1990). In order to do so, a plaintiff “must show that he has suffered an injury in fact that is fairly traceable to the challenged action of the defendant, and that is likely to be redressed by a favorable decision.” Hamdi v. Rumsfeld, 294 F.3d 598, 602 (4th Cir. 2002) (citing Whitmore, 495 U.S. at 155) (other citations omitted). Recognizing that some individuals may be unable to seek judicial relief on their own, however, the Supreme Court held in Whitmore v. Arkansas, 495 U.S. at 161–62, that a person who does not satisfy Article III’s standing requirements may still proceed in federal court through a mechanism known as “next friend” standing. Next friend standing originated in the habeas corpus context, and is codified in the federal habeas statute. See 28 U.S.C. § 2242 (“Application for a writ of habeas corpus shall be in writing signed and verified by the person for whose relief it is intended or by someone acting in his behalf.”). The onus is on the putative next friend to establish the requirements for standing. Whitmore, 495 U.S. at 164. Whitmore established two requirements for next friend standing. First, the next friend must provide “an adequate explanation—such as inaccessibility, mental incompetence, or other disability—why the real party in interest cannot appear on his own behalf to prosecute the action.” Id. at 163 (citations omitted). Second, the next friend must demonstrate that it is “truly dedicated to the best interests of the person on whose behalf [it] seeks to litigate.” Id. The Court
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also noted in dicta that “it has been further suggested that a ‘next friend’ must have some significant relationship with the real party in interest,” but did not opine on that issue. Id. at 163–64.
The ACLUF argues that it has next friend standing here because (1) the detainee is inaccessible, (2) the detainee has requested the assistance of counsel, and (3) “no other putative next friend has come forward” to represent him. (ECF No. 13, Opp. at 4). The ACLUF emphasizes that it is able to properly represent the detainee given its longstanding commitment to “upholding the constitutional rights of individuals” and its experience in representing other U.S. citizens detained under similar circumstances. (Id. at 5). Additionally, it argues that given the extreme circumstances of this case, including the Defense Department’s refusal to allow anyone (other than the Red Cross) access to the detainee, the ACLUF’s lack of a personal relationship with the detainee should not be a bar to next friend standing. (Id. at 11–13).
For “purposes of this filing,” the Defense Department does not dispute that the first prerequisite to next friend standing is satisfied: the detainee is currently inaccessible, and therefore cannot bring a habeas petition on his own behalf. (Mot. at 6–7 n.1). But the Department argues that the ACLUF cannot meet the second Whitmore requirement because it cannot show that it is dedicated to the detainee’s best interests, nor can it establish a significant relationship with him. (Id. at 6). Having considered the arguments of the parties, and under the facts of this case, the court finds that the ACLUF has demonstrated that it is dedicated to the detainee’s best interests, and that a showing of a significant relationship is not required in this case.
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1. The “Best Interests” Prong of the Whitmore Test The Defense Department argues that next friend standing should be denied because the ACLUF has not conferred or met with the detainee, and therefore cannot prove that it is pursuing his best interests, and, most importantly, the ACLUF does not know if the detainee wants the ACLUF to pursue habeas relief on his behalf. (Id. 7–10). The court finds the Defense Department’s position to be disingenuous at best, given that the Department is the sole impediment to the ACLUF’s ability to meet and confer with the detainee. Moreover, having informed the detainee of his right to counsel, and the detainee having asked for counsel, the Department’s position that his request should simply be ignored until it decides what to do with the detainee and when to allow him access to counsel is both remarkable and troubling. In support of its argument, the Defense Department cites to three cases where next friend standing was denied, based, in part, on the putative next friend’s failure to meet and confer with the detainee to learn of his wishes. (Id. at 8–9). However, in one of the cases, Sanchez–Velasco v. Sec’y of Dep’t of Corrections, 287 F.3d 1015 (11th Cir. 2002), the putative next friend had never even attempted to meet with the detainee whose best interests he claimed to represent, despite having the opportunity to do so. 287 F.3d at 1015, 1027. In the other two cases, the factual records, in addition to showing that the putative next friends failed to meet and confer with the detainees, indicated that the detainees did not wish to pursue habeas relief. See AlAulaqi v. Obama, 727 F. Supp. 2d 1, 21 (D.D.C. 2010) (“Indeed, to the extent that Anwar AlAulaqi has made his personal preferences known, he has indicated precisely the opposite—i.e., that he believes it is not in his best interests to prosecute this case.”); see also Idris v. Obama, 667 F. Supp. 2d 25, 28 (D.D.C. 2009) (“By refusing to meet with counsel on at least five
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occasions, petitioner has unequivocally refused to authorize counsel to go forward with his case.”) (emphasis in original).
The situation here is significantly different. Unlike in Sanchez, the ACLUF has tried to meet and confer with the detainee. Its letter to the Secretary of Defense and the Attorney General, just seventeen days after the detainee was taken into custody by U.S. forces, was met with silence. Here, it is the Defense Department’s—not the ACLUF’s—inaction that has prevented the ACLUF from meeting with the detainee. Moreover, unlike the other two cases upon which the Defense Department relies, in which the detainees did not want to avail themselves of the legal system, there is no indication here that the detainee does not wish to do so. Indeed, it is clear—and not mere speculation—that he wishes to have the assistance of a lawyer. Given the conditions under which the detainee is currently being held, his request for legal assistance is certainly evidence from which this court could infer a desire to avail himself of the legal system. Therefore, the court finds that the ACLUF has satisfied the “best interests” prong of the Whitmore test.
2. Significant Relationship The D.C. Circuit has not adopted the significant relationship requirement for next friend standing. Does v. Bush, 2006 WL 3096685, at *6 (D.D.C. Oct. 31, 2006) (“[T]his circuit has not addressed whether there must be ‘some significant relationship’ between a ‘next friend’ and the individual on whose behalf the ‘next friend’ seeks to act.”). Moreover, it has been suggested that “a court should consider whether or not a proposed ‘next friend’ has a ‘significant relationship’ with the detained individual as a consideration (rather than a separate requirement) when determining whether or not a proposed ‘next friend’ is dedicated to a detainee’s best interests.” Id. at *6 (citing Sanchez, 287 F.3d at 1026–27). Nonetheless, the Defense Department argues
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that a significant relationship—i.e., such as that of a close family member or previous attorney— is necessary in order to establish next friend standing in this case. (Mot. at 13). The court disagrees.
Even where no relationship—significant or otherwise—exists, next friend standing may be warranted in extreme circumstances. See Coal. of Clergy, Lawyers, & Professors v. Bush, 310 F.3d 1153, 1167 (9th Cir. 2002) (Berzon, J., concurring) (“In the extreme case, where there is no next friend under traditional criteria, the showing required to meet Whitmore’s second prong should be relaxed, to the degree that no relationship should be required if none is practically possible.”). Specifically, under Judge Berzon’s interpretation of the doctrine, next friend standing may be established in the absence of a relationship if: (1) the petitioner makes “an affirmative and convincing demonstration” of its dedication to the detainee’s best interests, “including a showing that [it has] made a reasonable effort to establish a relationship if none exists;” and (2) the petitioner can also show “that the circumstances entirely preclude both the appearance as next friend of anyone with a relationship to the detainee[] as well as the practical representation of the detainee[]’s interests in court by others similarly situated.” Id. at 1168.
The court finds Judge Berzon’s interpretation to be persuasive, and concludes that the ACLUF satisfies both requirements and therefore does not need to establish a significant or prior relationship with the detainee in this case. First, as discussed above, the ACLUF has demonstrated a dedication to the detainee’s best interests, and it attempted, prior to filing a petition in this court, to establish a relationship with the detainee by writing the Defense Department to note the detainee’s right to counsel and to offer to act on his behalf. (Pet. ¶ 18). It received no response. (Id.). Second, the court finds that the circumstances in this case preclude someone with a significant relationship from serving as the detainee’s next friend. For over three
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months, the detainee’s identity and location have remained unknown. Aside from two visits from the Red Cross, the detainee has had no contact with anyone other than armed forces and law enforcement personnel. (Decl. of Steven W. Dalbey ¶ 4; Pet. ¶¶ 16–17).
The Defense Department maintains that if the detainee wished to have someone take legal action on his behalf, he could have made this request during his visits with the Red Cross. (Mot. at 15). But the record is devoid of any information regarding the Red Cross visits (including whether the Red Cross was informed of the detainee’s name), whether the detainee has family members or associates who know about his detention, whether he wants them to know of his detention, or whether any such individuals would be willing or able to take legal action on his behalf.
Moreover, the detainee’s own statements, as proffered by the Defense Department, indicate that he appears to believe that counsel will be appointed for him. After the detainee told the FBI agents that he “felt he should have an attorney present,” the agents indicated they were unsure when he would have access to an attorney, and the detainee “stated that it was ok and that he is a patient man. [He] then asked whether when he saw the agents next with his attorney, would it be at his current location or somewhere else.” (Gov’t Nov. 30 Filing at 2) (emphasis added). His statements indicate that not only does he want counsel, but that he is waiting for counsel to be provided. This would certainly explain why he may not have asked the Red Cross for assistance in obtaining counsel.
The court’s ruling on the “significant relationship” issue in this case does not “open the floodgates to ‘intruders or uninvited meddlers’” as the Defense Department suggests. (Mot. at 13) (quoting Whitmore, 495 U.S. at 164). By its decision, the court does not sanction any “unwitting stranger” to establish next friend standing. (Id.). The court’s limited finding is based
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on the ACLUF’s willingness and ability to serve as the detainee’s next friend, and the likelihood that absent the ACLUF’s appearance as next friend, the detainee will have no other avenue through which to obtain the assistance he seeks, and to which he is constitutionally entitled. Accordingly, given that the ACLUF has satisfied both prongs of the Whitmore test, and that a significant relationship with the detainee is not required under these extreme circumstances, the court finds that the ACLUF has standing in this case.
B. Access to Counsel The Defense Department argues that the detainee does not have the immediate right to meet with counsel because his “final disposition” has yet to be determined. (Mot. at 16–21). Relying on Boumediene v. Bush, 553 U.S. 723, 795 (2008), the Department argues that it is entitled to a “reasonable period of time to determine the detainee’s status before a court entertains” the habeas petition. (Mot. at 18). Specifically, it claims that it needs time to decide whether to “criminally prosecute the individual,” “transfer the individual,” “release the individual,” or “further detain the individual.” (Tr. at 21:22–22:2). The Department also contends that it would be difficult to allow the ACLUF access because the detainee is being held in a restricted U.S. military zone. (Id. at 21). The court finds these arguments unavailing. Nothing in Boumediene restrains this court from ordering the Defense Department to grant the ACLUF immediate access. In that case, the Supreme Court, having found that foreign nationals were entitled to habeas relief, simply noted that the government should be permitted a reasonable amount of time in which to determine whether such detainees are enemy combatants before a court entertains a writ of habeas corpus. 553 U.S. at 733-34, 783, 795. Here, the Defense Department, which has had the detainee in custody for over three months, has already made this determination. (Decl. of Steven W. Dalbey ¶ 3).
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Finally, the Defense Department cannot strip the detainee of his right to habeas relief simply because the Department contends that allowing the ACLUF access “would be no easy matter.” (Mot. at 21). The Department is experienced in managing such difficulties in other cases, and has provided no reason why such inconvenience should outweigh the necessity of providing the detainee with the access to counsel he requested months ago. IV. CONCLUSION
For the foregoing reasons, the court will: (1) DENY the Defense Department’s motion to dismiss; (2) order that the Defense Department allow the ACLUF immediate and unmonitored access to the detainee for the sole purpose of determining whether the detainee wishes for the ACLUF to continue this action on his behalf; and (3) order the Defense Department to refrain from transferring the detainee until the ACLUF informs the court of the detainee’s wishes. The Defense Department may renew its motion to dismiss should the court learn that the detainee does not wish for the ACLUF to continue this action.

Date: December 23, 2017

Tanya S. Chutkan
TANYA S. CHUTKAN United States District Judge

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 Case 1:17-cv-02069-TSC Document 51 Filed 01/23/18 Page 1 of 8

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JOHN DOE,
Petitioner,
v.
GEN. JAMES N. MATTIS, in his official capacity as SECRETARY OF DEFENSE,
Respondent.

No. 17-cv-2069 (TSC)

MEMORANDUM OPINION Petitioner—a United States citizen—remains in Iraq in the custody of U.S. armed forces. While Petitioner now has access to counsel in order to pursue this habeas petition, the Department of Defense (“Defense Department”) may seek to transfer him prior to this court’s decision on his petition. The Defense Department is unable to provide a timeline for when this transfer might take place. Petitioner has requested that this court enjoin the Defense Department from transferring him to another country during the pendency of this litigation. Upon consideration of the parties’ filings, the oral arguments of counsel, and for the reasons stated herein, Petitioner’s Motion Regarding Continued Interim Relief will be GRANTED in part and DENIED in part. The court will not enjoin the Defense Department from transferring the Petitioner, but will require the Defense Department to provide the court and Petitioner’s counsel seventy-two hours’ notice prior to any such transfer.
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I. BACKGROUND On December 23, 2017, this court entered an order (1) denying the Defense Department’s
Motion to Dismiss (ECF No. 11), (2) requiring the Defense Department to permit the American Civil Liberties Union Foundation (“ACLUF”) immediate and unmonitored access to Petitioner to determine whether he wanted the ACLUF to pursue this action on his behalf, and (3) requiring the Defense Department to “refrain from transferring the detainee until the ACLUF informs the court of the detainee’s wishes.” (ECF No. 30). On January 5, 2018, the ACLUF informed the court that Petitioner wanted the ACLUF to represent him in this action. (ECF No. 32 (“Mot.”) at 1). The ACLUF also requested that the court extend the interim relief provided in its December 23 Order, and order the Defense Department not to transfer Petitioner until the court renders its decision on Petitioner’s habeas petition. (Id. at 2).
On January 18, 2018, the court held a hearing on Petitioner’s motion for continued relief. In response to the court’s inquiry as to whether the Defense Department intended to transfer the Petitioner within the next forty-eight hours, Department counsel indicated that it had no basis to believe that a transfer would take place within that timeframe. Counsel added, however, that it is the Defense Department’s position that it has the authority to transfer Petitioner as soon as another country is ready to receive him. Given the Defense Department’s position, and the court’s impending ruling on Petitioner’s motion, the court ordered the Defense Department to refrain from transferring Petitioner until Tuesday, January 23, 2018. (ECF No. 43).
At the January 18 hearing, the Defense Department also offered to provide the court with a classified declaration which would provide more detail regarding the Department’s position as to Petitioner. On January 19, 2018, the Defense Department filed a classified ex parte declaration through a Classified Information Security Officer. (See ECF No. 44). That evening,
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the Defense Department filed a redacted, sealed version of the same declaration. (ECF No. 45-1 (“Classified Declaration”)).
On January 22, 2018, the court held a status hearing, during which the court asked the parties whether they opposed an order requiring the Defense Department to provide the court and Petitioner’s counsel notice prior to transferring Petitioner. The Defense Department indicated that it would object to such an order. Petitioner’s counsel informed the court that Petitioner would not object to such an order, as long as he had the opportunity to contest his transfer. II. LEGAL STANDARD
In order to prevail on a motion for a preliminary injunction, the movant must show that: “[1] he is likely to succeed on the merits, [2] . . . he is likely to suffer irreparable harm in the absence of preliminary relief, [3] . . . the balance of equities tips in his favor, and [4] . . . an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). A preliminary injunction is an “extraordinary remedy” that is “never awarded as of right.” Id. at 24 (citing Munaf v. Geren, 553 U.S. 674, 689–90 (2008)). The D.C. Circuit has applied a sliding scale approach to evaluating preliminary injunctions, such that an unusually strong showing on one factor could make up for a weaker showing on another. See, e.g., Davis v. Pension Ben. Guar. Corp., 571 F.3d 1288, 1291–92 (D.C. Cir. 2009). It has been suggested that a movant’s showing of a likelihood of success, however, is a “‘free-standing requirement for a preliminary injunction.’” Sherley v. Sebelius, 644 F.3d 388, 393 (D.C. Cir. 2011) (quoting Davis, 571 F.3d at 1296 (Kavanaugh, J., concurring)).
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III. DISCUSSION A. Likelihood of Success on the Merits Petitioner has shown a likelihood of success on the merits of his claim that there should
be some restriction on the Defense Department’s ability to transfer him during the pendency of this litigation. Prior to transferring Petitioner, the Defense Department must present “positive legal authority” for his transfer. See Omar v. McHugh, 646 F.3d 13, 24 (D.C. Cir. 2011) (“None of this means that the Executive Branch may detain or transfer Americans or individuals in U.S. territory at will, without any judicial review of the positive legal authority for the detention or transfer.”); see also Valentine v. United States ex rel. Neidecker, 299 U.S. 5, 8 (1936) (power to provide for extradition “is not confided to the Executive in the absence of treaty or legislative provision”).
The court has reviewed the classified information provided by the Defense Department and finds that it does not present “positive legal authority” for Petitioner’s transfer. Neither does the Defense Department’s assertion that “international relations” with the receiving country would be harmed should the court prohibit his transfer at this time.
Despite its failure to present legal authority for Petitioner’s transfer, such as an extradition request or an allegation of criminal conduct committed in the receiving country, the Defense Department maintains that the court nonetheless cannot restrict Petitioner’s transfer while it considers his claim of unlawful detention. Relying on Munaf v. Geren, 553 U.S. 674 (2008), and Kiyemba v. Obama (“Kiyemba II”), 561 F.3d 509 (D.C. Cir. 2009), the Defense Department argues that the court is barred from restricting Petitioner’s transfer because of the “significant national security and foreign relations concerns” surrounding his transfer. (ECF No. 33 (“Opp.”) at 7–8). The court finds this argument unavailing.
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Nothing in Munaf or Kiyemba II restrains this court from restricting the Defense Department’s ability to transfer Petitioner in this case. In Munaf, two U.S. citizens—charged by the Iraqi government for crimes committed on Iraqi soil—were detained in Iraq by U.S. military forces as part of a multi-national force acting on behalf of the Iraqi government. 553 U.S. at 681–685. The detainees filed petitions for writs of habeas corpus, seeking to enjoin the multinational forces from transferring them to Iraqi custody. Id. The Supreme Court held that the district court did not have the power to enjoin the transfers, explaining that “[h]abeas corpus does not require the United States to shelter . . . fugitives from the criminal justice system of the sovereign with authority to prosecute them.” Id. at 705. Here, unlike in Munaf, there is no evidence in the record that Petitioner: (1) committed crimes in violation of the laws of another country; (2) is facing prosecution in another country; or (3) is being held on another country’s behalf. Therefore, this case does not implicate another country’s “sovereign right” to punish offenses within its borders. Id. at 693.
In Kiyemba II, the Court held that a district court did not have the power to enjoin the transfer of detained non-citizens or to require the government to provide 30 days’ notice prior to their transfer “based upon the expectation that a recipient country” will detain, prosecute or torture them. 561 F.3d at 514–15. But Kiyemba II involved non-citizens who, by virtue of their classification as wartime alien detainees, could not be released into the United States. Here, Petitioner—a U.S. citizen—seeks to enjoin transfer solely to ensure that he is able to pursue his habeas petition. He does not argue fear of detention, prosecution or torture in another country.
The court finds that Petitioner has shown a likelihood of success on his claim that this court may temporarily restrict the Defense Department’s ability to transfer him to another country. The court does not find, however, that the specific relief Petitioner seeks—prohibition
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of his transfer for the duration of these proceedings—is warranted at this time. Transferring the Petitioner is just one of the options the Defense Department is currently considering. (See Opp. at 7 (“Releasing Petitioner from U.S. custody into the custody of another country with a legitimate interest in him is one of the options under consideration.”)). Providing the relief Petitioner seeks would require the court to prohibit an action that the Defense Department has not yet decided to take. The court finds it more prudent to require the Defense Department to provide notice prior to transferring Petitioner, and to afford Petitioner the opportunity to contest his transfer should he decide to do so.
B. Irreparable Harm The Defense Department does not—because it cannot—argue that Petitioner will not be
irreparably harmed absent some relief from this court. Without a restriction on Petitioner’s transfer, the Defense Department may transfer Petitioner to the custody of another country prior to a decision on his habeas petition, and without providing any notice to this court or Petitioner’s counsel. Were that to occur, Petitioner would no longer be in U.S. custody, and will likely be unable to pursue his habeas petition. See In re Petitioners Seeking Habeas Corpus Relief in Relation to Prior Detentions at Guantanamo Bay, 700 F. Supp. 2d 119, 126 (D.D.C. 2010), aff’d sub nom. Chaman v. Obama, 2012 WL 3797596 (D.C. Cir. Aug. 10, 2012) (“For a petitioner in United States custody, the controversy is clear since he is attempting to secure his release from the United States Government. . . . For a petitioner released from United States custody, the caseor-controversy requirement is problematic because the remedy sought is more elusive.”) (citing Spencer v. Kemna, 523 U.S. 1, 7 (1998)); see also Qassim v. Bush, 466 F.3d 1073, 1076–77 (D.C. Cir. 2006) (finding petitioners’ claims for declaratory and injunctive relief moot because
6

Case 1:17-cv-02069-TSC Document 51 Filed 01/23/18 Page 7 of 8
they had been released from U.S. custody and did not show a collateral consequence of their prior detention).
C. Balance of Equities The balance of equities also weighs in Petitioner’s favor. The government has argued
that a ruling in Petitioner’s favor would result in serious harm to the government’s international relations with another country, and the court recognizes the government’s significant interest in maintaining fruitful, diplomatic relations. But the court is not convinced—based on the record here—that these diplomatic interests override the Petitioner’s well-established right “to contest the factual basis for [his] detention” through a habeas petition. Hamdi v. Rumsfeld, 542 U.S. 507, 509 (2004). Absent an articulated legal reason for the transfer, such as an extradition request or an allegation of criminal conduct committed in the receiving country, Petitioner’s right to habeas relief does not yield to the government’s desire to maintain good diplomatic relations.
Balancing the equities in Petitioner’s favor here is particularly appropriate, given that this court’s decision merely requires the Defense Department to provide notice prior to any transfer. The Defense Department is not prevented from continuing negotiations or discussions regarding the transfer, or from obtaining further information that might support a transfer. Absent a showing that the government—for international relations reasons or otherwise—needs to transfer Petitioner now, the court does not find that the government’s interests outweigh the Petitioner’s right to challenge his detention without fear of his transfer to another country. The Defense Department’s Classified Declaration does not convince the court otherwise.
D. Public Interest Judicial authority to review habeas corpus petitions derives from U.S. citizens’ rights to
“freedom from arbitrary and unlawful restraint.” Boumediene v. Bush, 553 U.S. 723, 797 (2008).
7

Case 1:17-cv-02069-TSC Document 51 Filed 01/23/18 Page 8 of 8 While this court is mindful of the government’s right to conduct diplomacy and foreign relations as it sees fit, this right must be balanced against United States citizens’ rights to contest the lawfulness of their detentions and transfers at the hands of the Executive. IV. CONCLUSION
For the foregoing reasons, Petitioner’s motion for continued relief will be GRANTED in part and DENIED in part. The Defense Department will be ordered to provide the court and Petitioner’s counsel seventy-two hours’ notice prior to transferring Petitioner, at which time Petitioner may file an emergency motion contesting his transfer. A corresponding order will issue separately. Date: January 23, 2018
Tanya S. Chutkan
TANYA S. CHUTKAN United States District Judge
8

 
 Case 1:17-cv-02069-TSC Document 56 Filed 02/02/18 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

JOHN DOE,

)

)

)

Petitioner,

) Civil Action No. 1:17-cv-2069 (TSC)

)

v.

)

)

GEN. JAMES N. MATTIS,

)

in his official capacity as SECRETARY )

OF DEFENSE,

)

)

Respondent.

)

NOTICE OF APPEAL

NOTICE is hereby given that Respondent General James N. Mattis, Secretary, United

States Department of Defense, hereby appeals to the United States Court of Appeals for the District

of Columbia Circuit from the Court’s Order filed and entered January 23, 2018 (Dkt. 52), which

requires the Respondent to provide the Court and Petitioner’s counsel seventy-two hours’ notice

prior to transferring Petitioner, providing Petitioner an opportunity to file an emergency motion

contesting his transfer.

February 2, 2018

Respectfully submitted,

CHAD A. READLER Acting Assistant Attorney General

JESSIE K. LIU United States Attorney

TERRY M. HENRY Assistant Director, Federal Programs Branch

/s/ Kathryn L. Wyer JAMES M. BURNHAM Senior Counsel (D.C. Bar. No. 1015196)

Case 1:17-cv-02069-TSC Document 56 Filed 02/02/18 Page 2 of 2
KATHRYN L. WYER Senior Trial Counsel, Federal Programs U.S. Department of Justice, Civil Division 20 Massachusetts Avenue, N.W Washington, DC 20530 Tel. (202) 616-8475 / Fax (202) 616-8470 kathryn.wyer@usdoj.gov Attorneys for Respondent

 
 Case 1:17-cv-02069-TSC Document 88 Filed 04/19/18 Page 1 of 1

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JOHN DOE,
Petitioner,
v.
GEN. JAMES N. MATTIS, in his official capacity as SECRETARY OF DEFENSE,
Respondent.

No. 17-cv-2069 (TSC)

PRELIMINARY INJUNCTION Upon consideration of Petitioner’s Motion for a Preliminary Injunction, ECF No. 81, and the entire record in this case, it is hereby ORDERED that Petitioner’s Motion for a Preliminary Injunction is hereby GRANTED, and that Respondent James N. Mattis (along with his successors in office, officers, agents, servants, employees, and anyone acting in concert with him) is, until further order of this Court, hereby enjoined from transferring Petitioner from U.S. custody. The court will issue a redacted public version of the Opinion and Order after consultation with the parties.

Date: April 19, 2018

Tanya S. Chutkan
TANYA S. CHUTKAN United States District Judge

 
 Case 1:17-cv-02069-TSC Document 89 Filed 04/20/18 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

JOHN DOE,

)

)

)

Petitioner,

) Civil Action No. 1:17-cv-2069 (TSC)

)

v.

)

)

GEN. JAMES N. MATTIS,

)

in his official capacity as SECRETARY )

OF DEFENSE,

)

)

Respondent.

)

NOTICE OF APPEAL

NOTICE is hereby given that Respondent General James N. Mattis, Secretary, United

States Department of Defense, hereby appeals to the United States Court of Appeals for the District

of Columbia Circuit from the Court’s Order filed and entered April 19, 2018 (Dkt. 88), which

prohibits Respondent from transferring Petitioner to the custody of another country.

April 20, 2018

Respectfully submitted,

CHAD A. READLER Acting Assistant Attorney General JESSIE K. LIU United States Attorney TERRY M. HENRY Assistant Director, Federal Programs Branch

/s/ Kathryn L. Wyer JAMES M. BURNHAM Senior Counsel KATHRYN L. WYER Senior Trial Counsel, Federal Programs OLIVIA HUSSEY SCOTT Trial Attorney, Federal Programs U.S. Department of Justice, Civil Division 20 Massachusetts Avenue, N.W.

Case 1:17-cv-02069-TSC Document 89 Filed 04/20/18 Page 2 of 2
Washington, DC 20530 Tel. (202) 616-8475 / Fax (202) 616-8470 kathryn.wyer@usdoj.gov Attorneys for Respondent

 
 Case 1:17-cv-02069-TSC Document 120 Filed 09/26/18 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

JOHN DOE,

)

)

Petitioner,

)

)

v.

) Civil Action No. 1:17-cv-2069 (TSC)

)

GEN. JAMES N. MATTIS,

)

in his official capacity as SECRETARY )

OF DEFENSE,

)

)

Respondent.

)

JOINT STATUS REPORT

Pursuant to the Court’s September 12, 2018 minute order, the parties write to inform the

Court that settlement discussions are ongoing. Accordingly, the parties respectfully request that

the Court continue to hold in abeyance any ruling on Petitioner’s pending Motion for Preliminary

Injunction for an additional fourteen days while the parties continue these discussions. If the

Court grants this request, the parties will inform the Court on or before October 10 whether an

agreement has been reached, whether an agreement has not been reached and the parties have not

agreed that the motion should continue to be held in abeyance, or whether both parties jointly

request additional time.

September 26, 2018

Respectfully submitted,

Arthur B. Spitzer (D.C. Bar No. 235960) American Civil Liberties Union
of the District of Columbia 915 15th Street, NW, 2nd Floor Washington, DC 20005 Tel: 202-457-0800 Fax: 202-457-0805 aspitzer@acludc.org

/s/ Jonathan Hafetz
Jonathan Hafetz (D.C. Bar No. NY0251) Dror Ladin (pro hac vice) Anna Diakun Brett Max Kaufman (D.C. Bar No. NY0224) Hina Shamsi (D.C. Bar No. MI0071) American Civil Liberties Union Foundation 125 Broad Street—18th Floor New York, New York 10004

Case 1:17-cv-02069-TSC Document 120 Filed 09/26/18 Page 2 of 2

Counsel for Petitioner

Tel: 212-549-2500 Fax: 212-549-2654 jhafetz@aclu.org dladin@aclu.org adiakun@aclu.org bkaufman@aclu.org hshamsi@aclu.org
JOSEPH H. HUNT Assistant Attorney General JESSIE K. LIU United States Attorney TERRY M. HENRY Assistant Director, Federal Programs Branch
/s/ Kathryn L. Wyer JAMES M. BURNHAM Senior Counsel KATHRYN L. WYER Senior Trial Counsel, Federal Programs OLIVIA HUSSEY SCOTT Trial Attorney, Federal Programs U.S. Department of Justice, Civil Division 20 Massachusetts Avenue, N.W Washington, DC 20530 Tel. (202) 616-8475 / Fax (202) 616-8470 kathryn.wyer@usdoj.gov Attorneys for Respondent

2

 
 United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________

No. 18-5032

September Term, 2017

1:17-cv-02069-TSC

Filed On: May 9, 2018

John Doe,

Appellee

v.

James Mattis, in his official capacity as Secretary of Defense,

Appellant

------------------------------

Consolidated with 18-5110

BEFORE: Henderson, Srinivasan, and Wilkins, Circuit Judges
O R D E R
Upon consideration of the order to show cause issued May 7, 2018, the response thereto, and the notice of appellee Doe joining in the response, it is
ORDERED that the order to show cause be discharged. It is
FURTHER ORDERED that the May 7, 2018 order to show cause be unsealed.
The Clerk is directed to issue publicly the redacted version of the court’s opinions filed May 7, 2018.
Per Curiam
FOR THE COURT: Mark J. Langer, Clerk
BY: /s/ Michael C. McGrail Deputy Clerk

 
 Case 1:17-cv-02069-TSC Document 132 Filed 04/08/19 Page 1 of 1

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JOHN DOE,
Petitioner,
v.
PATRICK M. SHANAHAN, in his official capacity as ACTING SECRETARY OF DEFENSE,
Respondent.

No. 17-cv-2069 (TSC)

PETITIONER’S NOTICE OF FILING PUBLIC REDACTED VERSION OF ECF 131 NOTICE is hereby given that attached are redacted versions, suitable for public filing, of
Petitioner’s Motion to Unseal Filings Concerning the Government’s Mooted Plan to Forcibly Transfer Petitioner Into Syria, filed on April 8, 2019, as ECF No. 131, and all attachments thereto.

Dated: April 8, 2019
Arthur B. Spitzer (D.C. Bar No. 235960) American Civil Liberties Union of the District of Columbia 915 15th Street, NW, 2nd Floor Washington, DC 20005 Tel: 202-457-0800 Fax: 202-457-0805 aspitzer@acludc.org
Counsel for Petitioner

Respectfully submitted,
/s/ Brett Max Kaufman___________________ Brett Max Kaufman (D.D.C. Bar No. NY0224) Jonathan Hafetz (D.D.C. Bar No. NY0251) Anna Diakun Dror Ladin (D.D.C. Bar No. NY0277) Hina Shamsi (D.D.C. Bar No. MI0071) American Civil Liberties Union Foundation 125 Broad Street—18th Floor New York, New York 10004 Tel: 212-549-2500 Fax: 212-549-2654 bkaufman@aclu.org jhafetz@aclu.org adiakun@aclu.org dladin@aclu.org hshamsi@aclu.org

Case 1:17-cv-02069-TSC Document 132-1 Filed 04/08/19 Page 1 of 15

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JOHN DOE,
Petitioner,
v.
PATRICK M. SHANAHAN, in his official capacity as ACTING SECRETARY OF DEFENSE,
Respondent.

No. 17-cv-2069 (TSC)

ECF 131 REDACTED VERSION FOR PUBLIC FILING

Case 1:17-cv-02069-TSC Document 132-1 Filed 04/08/19 Page 2 of 15 _U__N_D__E_R__S_E__A_L__
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JOHN DOE,
Petitioner,
v.
PATRICK M. SHANAHAN, in his official capacity as ACTING SECRETARY OF DEFENSE,
Respondent.

No. 17-cv-2069 (TSC) __U_N__D_E_R__S__E_A_L__

PETITIONER’S MOTION TO UNSEAL FILINGS CONCERNING THE GOVERNMENT’S MOOTED PLAN TO FORCIBLY
TRANSFER PETITIONER INTO SYRIA Pursuant to paragraph 9 of the Protective Order entered in this case, ECF No. 103,1
Petitioner respectfully moves for the prompt unsealing of eight documents filed under seal in this
matter between June 6, 2018, and July 6, 2018, relating to the government’s proposed (and now
mooted) forcible transfer of Petitioner into Syria, namely ECF Nos. 95, 97, 99, 101, 106, 107, 108, and 111 (together, the “Sealed Filings”).2 Given that this proceeding concerned the
prolonged detention without charge of a U.S. citizen, there is significant public interest in the
Sealed Filings, and there is no continued justification for their continued sealing because the
government abandoned its plan when the parties agreed to Petitioner’s transfer to Bahrain with
his freedom restored.
Counsel for the government has informed Petitioner that it will oppose this motion.
1 Paragraph 9 provides that once information has been designated as protected, “Petitioner’s counsel shall treat [it] as protected unless and until the Court rules” to the contrary. 2 The parties filed redacted versions of these sealed filings as ECF Nos. 96, 98, 105, 112, 113, and 114. By this motion, Petitioner also seeks to unseal this motion and any related future filings in this Court at the conclusion of this litigation.

Case 1:17-cv-02069-TSC Document 132-1 Filed 04/08/19 Page 3 of 15 _U__N_D__E_R__S_E_A__L__
TABLE OF CONTENTS INTRODUCTION .......................................................................................................................... 1 FACTUAL BACKGROUND ......................................................................................................... 1 ARGUMENT .................................................................................................................................. 4
I. The First Amendment and the common law require specific and substantial justifications for continued sealing of court records............................................................ 4
II. Any prior government interest in sealing information concerning the proposed forcible transfer of Petitioner to Syria has dissipated and cannot justify continued sealing .................................................................................................................................. 7
CONCLUSION............................................................................................................................... 9
ii

Case 1:17-cv-02069-TSC Document 132-1 Filed 04/08/19 Page 4 of 15 __U_N__D_E__R__S_E_A_L__
TABLE OF AUTHORITIES
Cases
Ashworth v. Bagley, 351 F. Supp. 2d 786 (S.D. Ohio 2005) ....................................................................................... 5
Dhiab v. Trump, 852 F.3d 1087 (D.C. Cir. 2017) .................................................................................................. 5
Doe v. Mattis, 288 F. Supp. 3d 195 (D.D.C. 2018), affirmed, 889 F.3d 745 (D.C. Cir. 2018) ......................... 1
Gabrion v. United States, No. 15-CV-447, 2015 WL 2354745 (W.D. Mich. May 15, 2015) ............................................. 5
*Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982).................................................................................................................... 6
In re Guantánamo Bay Detainee Litig., 630 F. Supp. 2d 1 (D.D.C. 2009) ................................................................................................ 5
In re Nat’l Broad. Co., 653 F.2d 609 (D.C. Cir. 1981) .................................................................................................... 6
Metlife, Inc. v. Fin. Stability Oversight Council, 865 F.3d 661 (D.C. Cir. 2017) ................................................................................................ 5, 6
N.Y. Civil Liberties Union v. N.Y.C. Transit Auth., 684 F.3d 286 (2d Cir. 2012)........................................................................................................ 5
Newman v. Graddick, 696 F.2d 796 (11th Cir. 1983) .................................................................................................... 5
Nixon v. Warner Commc’ns, Inc., 435 U.S. 589 (1978).................................................................................................................... 5
Osband v. Ayers, No. CIV S-97-0152, 2007 WL 3096113 (E.D. Cal. Oct. 22, 2007) ........................................... 5
*Press-Enter. Co. v. Superior Court (Press-Enter. II), 478 U.S. 1 (1986)........................................................................................................................ 6
Ramirez v. Attorney Gen. of N.Y., No. 99 Civ. 1909, 1999 WL 1059966 (S.D.N.Y. Nov. 22, 1999) .............................................. 5
*Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980)................................................................................................................ 5, 6
iii

Case 1:17-cv-02069-TSC Document 132-1 Filed 04/08/19 Page 5 of 15 UNDER SEAL
United States v. Erie Cty., 763 F.3d 235 (2d Cir. 2014)........................................................................................................ 7
United States v. Hubbard, 650 F.2d 293 (D.C. Cir. 1980) ................................................................................................ 5, 7
Wash. Post v. Robinson, 935 F.2d 282 (D.C. Cir. 1991) ................................................................................................ 5, 6 Other Authorities
Anne Barnard, Death Toll from War in Syria Now 470,000, Group Finds, N .Y. Times, Feb. 11, 201 6............................................................................................................................... 2
Lizzie Dearden , Syrian Civil War: More Than Five Million Refugees Flee Conflict as Global Supp ort/or Resettlement Wanes, Independent, Mar. 30, 2017, https://ind.pn/2kV5qxi ............ 2
Notice of Extension of the Designation of Syria for Temporary Protected Status, 83 Fed. Reg. 9329 (Mar. 5, 201 8) .................................................................................................................... 3 .................. 8 .............................................................................................................................. 8 .......................................................................................................... 8 .......................................................................................................... 8
U.S. Dep 't of State-Bureau of Consular Aff. , Syria Travel Adviso1y (Jan. 10, 201 8) ................ 2 U.S. Dep 't of State-Bureau of Consular Aff. , Syria: Safety and Security (Feb. 20, 201 8).......... 2
lV

Case 1:17-cv-02069-TSC Document 132-1 Filed 04/08/19 Page 6 of 15 __U_N_D__E_R__S_E__A_L__
INTRODUCTION During the litigation at issue in the Sealed Filings, both parties agreed to redact certain information about the precise location and conditions of the government’s proposed transfer of Petitioner to Syria. The government had insisted that these details of the proposed transfer be kept under seal to “protect specific details regarding the noticed release of Petitioner,” ECF No. 96 (June 7, 2018), “in order to safeguard the security of DoD’s military operations,” ECF No. 96-1 (June 7, 2018). Because of the speed of the litigation, the government’s reasonable concern for ensuring the safety of a developing plan involving military personnel, and concern for Petitioner’s own personal safety, Petitioner’s counsel agreed to redact a wealth of material— much of it drawn from public (and mostly government) sources—that would have tended to reveal the precise location or certain conditions of the proposed transfer, but did not concede that all redacted material was properly sealed. Now—with Petitioner released from custody, this habeas action terminated, and the government’s proposed Syria transfer moot—the government’s asserted bases for sealing have entirely dissipated. Petitioner therefore respectfully requests that the Court order the unsealing of both the government’s and Petitioner’s Sealed Filings concerning the proposed transfer to Syria. Both the First Amendment and the common law demand this result.
FACTUAL BACKGROUND In May 2018, the D.C. Circuit affirmed this Court’s ruling that the government could not forcibly transfer Petitioner into the custody of a foreign country. See Doe v. Mattis, 288 F. Supp. 3d 195 (D.D.C. 2018), affirmed, 889 F.3d 745 (D.C. Cir. 2018). Shortly thereafter, this Court ordered the government to finally defend its legal justification for detaining Petitioner. See
1

Case 1:17-cv-02069-TSC Document 132-1 Filed 04/08/19 Page 7 of 15 __U_N__D_E__R__S_E_A_L__
Minute Order (May 15, 2018). Rather than do so, the government attempted to forcibly transfer Petitioner yet again—this time, into Syria. See ECF No. 96 (June 7, 2018).
If allowed, the government’s proposed transfer of Petitioner from Iraq to Syria would have ended Petitioner’s detention by stranding him—without a passport or access to American consular services—in an area
. At that time, Syria was among the most dangerous places on Earth. The war in Syria had caused at least 470,000 deaths, see Anne Barnard, Death Toll from War in Syria Now 470,000, Group Finds, N.Y. Times, Feb. 11, 2016, https://nyti.ms/1mvfgnn, and had forced more than five million people to flee the country and seek refuge, see Lizzie Dearden, Syrian Civil War: More Than Five Million Refugees Flee Conflict as Global Support for Resettlement Wanes, Independent, Mar. 30, 2017, https://ind.pn/2kV5qxi.
According to the State Department, “No part of Syria [wa]s safe from violence.” U.S. Dep’t of State—Bureau of Consular Aff., Syria Travel Advisory (Jan. 10, 2018), https://perma.cc/E5BC-5MLX. The State Department advised U.S. citizens in Syria to “[d]raft a will” and inform loved ones of “funeral wishes, etc.” Id. The government warned that even U.S. citizens who possessed identification documents faced “dangers traveling within the country and when trying to leave Syria via land borders, given the diminishing availability of commercial air travel out of Syria.” U.S. Dep’t of State—Bureau of Consular Aff., Syria: Safety and Security (Feb. 20, 2018), https://perma.cc/PWH9-CNDS. The government also told the public that border checkpoints controlled by the opposition force in Syria, the Syrian Democratic Forces, “should not be considered safe” and border areas “are frequent targets of shelling and other attacks and are crowded because of internally-displaced refugees.” Id.
2

Case 1:17-cv-02069-TSC Document 132-1 Filed 04/08/19 Page 8 of 15 __U_N__D_E_R__S_E__A_L__
Similarly, the Department of Homeland Security had determined that Syria was so unsafe that Syrian nationals unlawfully present in the United States must not be forcibly returned to their home country. In January 2018, the Secretary of Homeland Security published in the Federal Register the determination that “requiring the return of Syrian nationals (or aliens having no nationality who last habitually resided in Syria) to Syria would pose a serious threat to their personal safety.” Notice of Extension of the Designation of Syria for Temporary Protected Status, 83 Fed. Reg. 9329, 9332 (Mar. 5, 2018). The Department of Homeland Security recognized that “Syria is engulfed in an ongoing civil war marked by brutal violence against civilians, egregious human rights violations and abuses, and a humanitarian disaster on a devastating scale across the country.” Id. at 9331. Accordingly, the Department of Homeland Security extended the “Temporary Protected Status” designation to Syria through September 30, 2019. Id.
To stop this attempt to transfer Petitioner into a war-torn country, rapid and vigorous litigation ensued. Between June 7 and July 13, the parties filed seven sealed briefs (with associated declarations) in connection with Petitioner’s motions for a temporary restraining order and a preliminary injunction. Due to the involvement of U.S. military personnel and the clear danger the government’s proposal posed to Petitioner, Petitioner’s counsel agreed to treat the specific location and certain conditions of the government’s planned transfer as covered by the parties’ protective order, see ECF No. 103 (June 15, 2018). On July 13, the Court held a hearing on Petitioner’s motion for a preliminary injunction. With a decision from this Court imminent, the parties then filed a joint status report requesting that the Court hold that motion in abeyance because they were “engaged in ongoing settlement discussions regarding resolution of this case.” ECF No. 115 (July 19, 2018). The Court granted that request, see Minute Order (July 20, 2018),
3

Case 1:17-cv-02069-TSC Document 132-1 Filed 04/08/19 Page 9 of 15 __U_N_D__E_R__S_E__A_L__
and nearly four months later, after lengthy negotiations and with Petitioner’s consent, the government released Petitioner as a free man in Bahrain. See ECF No. 125 (Nov. 7, 2018).
ARGUMENT Although the sealed filings concerning the government’s proposed forcible transfer of Petitioner into Syria were promptly followed by public, redacted versions, the public has been denied access to the parties’ full arguments, as well as many of the facts that complete the picture of the actual nature of the government’s proposal. At the time, the government justified sealing this information because “advance public notification” of the details of the transfer risked compromising the security of the operation. See ECF No. 96-1 at 2 n.1. Now that Petitioner has been freed, the government’s justification no longer holds. Under First Amendment and common law right-of-access standards, the government cannot indefinitely hide such information even after its reasons for sealing have evaporated. For this reason, Petitioner respectfully requests that the Court rule that this information should no longer be designated as protected. Moreover, there remains significant public interest in knowing the danger to which the United States government was willing to subject a U.S. citizen. That this Court did not have to rule on the legality of the government’s plan makes the unsealing of this material even more necessary—for it is only in the court of public opinion that the government’s plan can now be judged. That is a core function of the public right of access to judicial proceedings, and it is one Petitioner respectfully requests that this Court exercise now. I. The First Amendment and the common law require specific and substantial justifications for continued sealing of court records. Because judicial transparency is essential to our democratic system of government, both the First Amendment and the common law presumptively protect the public’s right of access to court proceedings and records. See, e.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555,
4

Case 1:17-cv-02069-TSC Document 132-1 Filed 04/08/19 Page 10 of 15 _U__N_D__E_R__S_E_A__L__
564–73, 580 n.17 (1980); Wash. Post v. Robinson, 935 F.2d 282, 287–88 (D.C. Cir. 1991). Although these rights are not absolute, they firmly prohibit judicial secrecy imposed “without sufficient justification.” N.Y. Civil Liberties Union v. N.Y.C. Transit Auth., 684 F.3d 286, 296 (2d Cir. 2012). As the D.C. Circuit recently reiterated, “there is a ‘strong presumption in favor of public access to judicial proceedings,’” as such access “‘is fundamental to a democratic state.’” Metlife, Inc. v. Fin. Stability Oversight Council, 865 F.3d 661, 665 (D.C. Cir. 2017) (quoting United States v. Hubbard, 650 F.2d 293, 317, 315 n.79 (D.C. Cir. 1980)); see Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597–98 (1978).
It is well settled that both the First Amendment and common law rights of access generally apply to the proceedings and records of habeas cases. See In re Guantánamo Bay Detainee Litig., 630 F. Supp. 2d 1, 8–13 (D.D.C. 2009) (holding that the First Amendment and common law rights of access applied to unclassified factual returns in habeas actions arising from military detention of noncitizens at Guantánamo Bay, Cuba); see also, e.g., Osband v. Ayers, No. CIV S-97-0152, 2007 WL 3096113, at *1–3 (E.D. Cal. Oct. 22, 2007) (constitutional right); Ramirez v. Attorney Gen. of N.Y., No. 99 Civ. 1909, 1999 WL 1059966, at *1 (S.D.N.Y. Nov. 22, 1999) (same); Gabrion v. United States, No. 15-CV-447, 2015 WL 2354745, at *1 (W.D. Mich. May 15, 2015) (common law right); Ashworth v. Bagley, 351 F. Supp. 2d 786, 791– 92 (S.D. Ohio 2005) (same); see also Newman v. Graddick, 696 F.2d 796, 801 (11th Cir. 1983) (constitutional access right extends to proceedings “which pertain to the release or incarceration of prisoners and the conditions of their confinement”).3
3 The D.C. Circuit’s decision in Dhiab v. Trump, 852 F.3d 1087 (D.C. Cir. 2017), is not to the contrary. There, the D.C. Circuit addressed only whether there existed “a right under the First Amendment to receive properly classified national security information filed in court during the pendency of [a petitioner’s] petition for a writ of habeas corpus.” Id. at 1096 (emphasis added).
5

Case 1:17-cv-02069-TSC Document 132-1 Filed 04/08/19 Page 11 of 15 __U_N__D_E__R__S_E_A_L__
Where the First Amendment right of access attaches to judicial documents, strict scrutiny applies to any restriction of that right. See Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606–07 & n.17 (1982); accord Richmond Newspapers, 448 U.S. at 580–81. To overcome such scrutiny, the party seeking to restrict access must support its sealing motion with “compelling reasons,” and the court “must articulate specific findings on the record demonstrating that the decision to seal . . . is narrowly tailored and essential to preserve a compelling government interest.” Robinson, 935 F.2d at 289 & n.10; see also Press-Enter. Co. v. Superior Court (Press-Enter. II), 478 U.S. 1, 15 (1986) (“The First Amendment right of access cannot be overcome by [a] conclusory assertion . . . .”). To justify continued sealing, the government must show a “substantial probability” of harm backed up by evidence allowing for “specific, on the record findings” supporting the likelihood of harm. Press-Enter. II, 478 U.S. at 13–14. Conclusory assertions are not sufficient to abridge the First Amendment public access right, id. at 15, and speculation does not carry the government’s burden, Globe Newspaper Co., 457 U.S. at 609–610.
Similarly, the common law affords the public a presumptive right to access judicial records and documents so long as the public’s interest in accessing the documents is not outweighed by countervailing concerns. See Metlife, 865 F.3d at 665. “A seal may be maintained only ‘if the district court, after considering the relevant facts and circumstances of the particular case, and after weighing the interests advanced by the parties in light of the public interest and the duty of the courts, concludes that justice so requires.’” Id. at 665–66 (quoting In re Nat’l Broad. Co., 653 F.2d 609, 613 (D.C. Cir. 1981)). In so balancing, the Court must begin with a
Here, the government has not classified the information at issue, but has merely insisted that it be deemed protected under the parties’ protective order. See ECF No. 103. And the protective order itself provides that it “may be modified by further order of the Court upon its own motion or upon application by any party.” ECF No. 103 ¶ 2.
6

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“strong presumption in favor of public access.” Hubbard, 650 F.2d at 317; see id. at 317–22 (explaining balancing test).4 II. Any prior government interest in sealing information concerning the proposed
forcible transfer of Petitioner to Syria has dissipated and cannot justify continued sealing. In the face of the clear public interest in this proceeding generally, and in the Sealed Filings specifically, the government cannot satisfy either of the right-of-access standards. At the time, the government explained that “[t]he details of the intended release of Petitioner as described in [the Mitchell] declaration must occur without advance public notification in order to safeguard the security of DoD’s military operations” in connection with Petitioner’s proposed forcible transfer. ECF No. 96-1 at 2 n.1 (emphasis added); June 8, 2018 Hr’g Tr. 3:16–21, ECF No. 100 (government counsel explaining that it redacted “the location, things that would reveal the location and the time . . . for petitioner’s safety as much as our own”). In light of concerns for the safety of U.S. military personnel and Petitioner during this anticipated operation, Petitioner did not object to the filing of this information under seal. But now, nine months later, the government has released Petitioner from custody, and any operational plans to transfer him to this area of Syria were scrapped long ago. The government can no longer justify the continued sealing of this information. The details now shielded from the public in the Sealed Filings would tell the public a story that it has the right to know.
4 Because the First Amendment right plainly applies here and is more protective than the common law, this Court need not separately consider the common law right. United States v. Erie Cty., 763 F.3d 235, 241 (2d Cir. 2014).
7

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UNDER SEAL
8

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Nine months later, the public still knows none of these details. And, given the passage of time and the resolution of this habeas action through Petitioner’s release more than five months ago as a free man elsewhere, the government cannot demonstrate a substantial probability of harm to a compelling government interest that would flow from public access to the Sealed Filings, as required by the First Amendment. Nor do the government’s previous limited assertions concerning such harm establish that any harm from public disclosure of the Sealed Filings would outweigh the strong presumption in favor of public access, as required by the common law, now.
CONCLUSION For the reasons given above, the motion should be granted. A proposed order is filed herewith.
9

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Dated: April 8, 2019
Arthur B. Spitzer (D.C. Bar No. 235960) American Civil Liberties Union
of the District of Columbia 915 15th Street, NW, 2nd Floor Washington, DC 20005 Tel: 202-457-0800 aspitzer@acludc.org

Respectfully submitted,
/s/ Brett Max Kaufman Brett Max Kaufman (D.D.C. Bar No. NY0224) Jonathan Hafetz (D.D.C. Bar No. NY0251) Anna Diakun Dror Ladin (D.D.C. Bar No. NY0277) Hina Shamsi (D.D.C. Bar No. MI0071) American Civil Liberties Union Foundation 125 Broad Street—18th Floor New York, New York 10004 Tel: 212-549-2500 Fax: 212-549-2654 bkaufman@aclu.org jhafetz@aclu.org adiakun@aclu.org dladin@aclu.org hshamsi@aclu.org
Counsel for Petitioner

10

Case 1:17-cv-02069-TSC Document 132-2 Filed 04/08/19 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JOHN DOE,
Petitioner,
v.
PATRICK M. SHANAHAN, in his official capacity as ACTING SECRETARY OF DEFENSE,
Respondent.

No. 17-cv-2069 (TSC)

ECF 131-1 REDACTED VERSION FOR PUBLIC FILING

Case 1:17-cv-02069-TSC Document 132-2 Filed 04/08/19 Page 2 of 2 _U_N__D_E_R__S__E_A_L__
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JOHN DOE,
Petitioner,
v.
PATRICK M. SHANAHAN, in his official capacity as ACTING SECRETARY OF DEFENSE,
Respondent.

No. 17-cv-2069 (TSC) _U_N__D_E__R__S_E_A__L_

[PROPOSED] ORDER GRANTING PETITIONER’S MOTION TO UNSEAL FILINGS CONCERNING THE GOVERNMENT’S MOOTED PLAN TO FORCIBLY
TRANSFER PETITIONER INTO SYRIA Upon consideration of Petitioner’s motion to unseal ECF Nos. 95, 97, 99, 101, 106, 107, 108, and 111, and to unseal the instant motion and related future filings, and of the Respondent’s opposition hereto, it appearing to the Court that there is no continuing need for secrecy with respect to the contents of those filings, it is hereby ORDERED that the Clerk shall file ECF Nos. 95, 97, 99, 101, 106, 107, 108, and 111 (including all exhibits and attachments thereto) on the public record. And it is further ORDERED that the parties shall each file on the public record their submissions related to the instant motion without redactions within one week of the date of this order.

Dated: ________________, 2019

_________________________________ Tanya S. Chutkan United States District Judge

 
 Case 1:17-cv-02069-TSC Document 141 Filed 07/08/19 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JOHN DOE,
Petitioner,
v.
MARK T. ESPER, in his official capacity as ACTING SECRETARY OF DEFENSE,
Respondent.

No. 17-cv-2069 (TSC)

CONSENT MOTION TO HOLD IN ABEYANCE PETITIONER’S BRIEFING DEADLINE CONCERNING HIS MOTION TO UNSEAL
Petitioner hereby respectfully moves that the Court hold in abeyance Petitioner’s deadline to file a reply brief on his pending motion to unseal. Good cause exists to grant this motion. The parties have reached an agreement in principle that will resolve Petitioner’s motion to unseal without the need for further litigation. Both parties will work jointly to finalize this agreement and, as promptly as practicable, to file new versions of the Sealed Filings (ECF Nos. 95, 97, 99, 101, 106, 107, 108, and 111) with agreed-upon redactions. Counsel for Respondent consents to this request.
Accordingly, Petitioner respectfully requests that the Court hold Petitioner’s deadline to file his reply brief on the motion to unseal, presently scheduled for today, July 8, 2019, in abeyance until further notice from the parties.

Dated: July 8, 2019

Respectfully submitted,

/s/ Brett Max Kaufman Brett Max Kaufman (D.D.C. Bar No.
NY0224)

Case 1:17-cv-02069-TSC Document 141 Filed 07/08/19 Page 2 of 2
Jonathan Hafetz (D.D.C. Bar No. NY0251) Anna Diakun Dror Ladin (D.D.C. Bar No. NY0277) Hina Shamsi (D.D.C. Bar No. MI0071) American Civil Liberties Union Foundation 125 Broad Street—18th Floor New York, New York 10004 T: 212-549-2500 F: 212-549-2654 bkaufman@aclu.org jhafetz@aclu.org adiakun@aclu.org dladin@aclu.org hshamsi@aclu.org Arthur B. Spitzer (D.C. Bar No. 235960) American Civil Liberties Union
of the District of Columbia 915 15th Street, NW, 2nd Floor Washington, DC 20005 T: 202-457-0800 aspitzer@acludc.org Counsel for Petitioner
2

Case 1:17-cv-02069-TSC Document 141-1 Filed 07/08/19 Page 1 of 1

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JOHN DOE,
Petitioner,
v.
MARK T. ESPER, in his official capacity as ACTING SECRETARY OF DEFENSE,
Respondent.

No. 17-cv-2069 (TSC)

[PROPOSED] ORDER GRANTING CONSENT MOTION TO HOLD IN ABEYANCE PETITIONER’S BRIEFING DEADLINE CONCERNING HIS MOTION TO UNSEAL
Upon consideration of Petitioner’s Consent Motion to Hold in Abeyance Petitioner’s
Briefing Deadline Concerning His Motion to Unseal, and for good cause shown, the motion is
GRANTED. Accordingly, it is ORDERED that Petitioner’s deadline will be held in abeyance.

Dated: July ___, 2019

______________________________ Tanya S. Chutkan United States District Judge

 
 United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________

No. 18-5032

September Term, 2018

John Doe,

1:17-cv-02069-TSC Filed On: June 28, 2019

Appellee

v.

Mark T. Esper, in his official capacity as Acting Secretary of Defense,

Appellant ----------------------------Consolidated with 18-5110

BEFORE: Henderson, Srinivasan, and W ilkins, Circuit Judges
O R D E R
Upon consideration of the joint motion of the New York Times Company and Charlie Savage (“New York Times”) and the government to withdraw the pending motion to unseal filed by the New York Times on April 9, 2019; to permit the New York Times to intervene for the purpose of seeking to unseal portions of this court’s opinion dated May 7, 2018; and to unseal all redacted portions of the opinion, except for the name of a government official identified in citations to the official’s declaration, it is
ORDERED that the motion of the New York Times for leave to intervene for the purpose of seeking to unseal portions of the court’s opinion dated May 7, 2018, be granted. It is
FURTHER ORDERED that the request to withdraw the pending motion to unseal filed April 9, 2019, be granted. The motion is hereby deemed withdrawn. The Clerk is directed to note the docket accordingly. It is
FURTHER ORDERED that the slip opinions filed under seal on May 7, 2018, which were subsequently redacted and filed on May 9, 2018, be unsealed with the exception of the name of the declarant identified on pages 18 n.7, 32, and 33 of the dissent. The Clerk is directed to issue the majority opinion publicly and to issue the dissenting opinion publicly, redacting only the exceptions identified in the joint motion filed June 3, 2019.
Per Curiam

FOR THE COURT: Mark J. Langer, Clerk
BY: /s/ Ken Meadows Deputy Clerk

 
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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 5, 2018 Reargued April 27, 2018

Decided May 7, 2018 Reissued June 28, 2019

No. 18-5032

JOHN DOE, APPELLEE

v.

JAMES MATTIS, IN HIS OFFICIAL CAPACITY AS SECRETARY OF DEFENSE, APPELLANT

Consolidated with 18-5110

Appeal from the United States District Court for the District of Columbia (No. 1:17-cv-02069)

James M. Burnham, Attorney, U.S. Department of Justice, argued the cause for appellant. With him on the briefs were Jessie K. Liu, U.S. Attorney, Matthew M. Collette and Sonia M. Carson, Attorneys. Catherine H. Dorsey, Attorney, entered an appearance.
Jonathan L. Hafetz argued the cause for appellee. With him on the briefs were Arthur B. Spitzer and Hina Shamsi.

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Before: HENDERSON, SRINIVASAN, and WILKINS, Circuit Judges.
Opinion for the Court filed by Circuit Judge SRINIVASAN, with whom Circuit Judge WILKINS joins.
Dissenting opinion filed by Circuit Judge HENDERSON.
SRINIVASAN, Circuit Judge: This case involves a United States citizen who has been detained by the United States military in Iraq for several months. He seeks release from military custody in a habeas corpus action brought under the pseudonym John Doe. Doe is a citizen not only of the United States but also of Saudi Arabia.
Doe was initially captured in Syrian territory controlled by the Islamic State of Iraq and the Levant (ISIL). The Department of Defense determined that he is an enemy combatant for ISIL, and the Department has been detaining him at a military facility in Iraq. Doe’s habeas petition contends that he must be released because, he claims, ISIL combatants do not come within any existing authorization for use of military force. He also contends that he is not in fact an ISIL combatant. At this stage of the proceedings, no court has addressed the merits of those claims.
This appeal instead concerns a separate claim by Doe: that the government, while his habeas petition remains pending, cannot forcibly—and irrevocably—transfer him to the custody of another country. Transfer of Doe to another country’s custody would, naturally, obviate any occasion to seek release from physical custody at the hands of the United States. In connection with the possibility of Doe’s forcible transfer to the custody of another country, the district court has entered two orders we now review.

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In the first order, the court required the government to give 72 hours’ notice before transferring Doe to the custody of any other country. The notice period was meant to afford the court an opportunity to review the circumstances of a planned transfer before it takes place. The government seeks to set aside any obligation to give advance notice with regard to two specific countries. We will refer to those countries as Country A and Country B because of the government’s desire to withhold public release of their identities due to apparent sensitivities associated with ongoing or future diplomatic discussions.
The district court’s second order came about after the government reached an agreement with Country B to transfer Doe to its custody. The government gave the district court the requisite notice of its intent to transfer Doe to that country. The court then enjoined the government from effecting the transfer. In the court’s view, the government had failed to demonstrate the necessary legal authority (specifically, a statute or treaty) for the transfer.
We sustain both of the district court’s orders. In claiming the authority to forcibly transfer an American citizen held abroad to the custody of another country, the government ultimately relies on two species of argument. Neither, in our view, gives the government the power to effect its desired handover of Doe to Country B, at least as things currently stand.
The first rationale advanced by the government has no necessary grounding in Doe’s designation as an enemy combatant or in the military’s authority under the law of war. Rather, the government relies on Supreme Court decisions recognizing that, when a foreign country wants to prosecute an American citizen already present in its territory for a crime

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committed within its borders, the Executive can relinquish her to that country’s custody for purposes of criminal proceedings. See Munaf v. Geren, 553 U.S. 674 (2008); Wilson v. Girard, 354 U.S. 524 (1957). Those decisions, on the government’s reading, extend past their facts in two ways: (i) they enable a forcible transfer of a U.S. citizen to a different foreign country than the one in which she is already present, and (ii) they enable a forcible transfer as long as the receiving country has some legitimate sovereign interest in her (whether or not related to criminal prosecution). No. 18-5032, Gov’t Opening Br. 23-25.
We cannot accept the government’s argument. We know of no instance—in the history of the United States—in which the government has taken an American citizen found in one foreign country and forcibly transferred her to the custody of another foreign country. Under the logic of the government’s position, it could pick up an American traveling in Europe and involuntarily relinquish her to, say, the custody of Afghanistan, as long as Afghanistan is thought to have some cognizable sovereign interest in her. We cannot conclude that the government possesses that kind of authority over a U.S. citizen, at least without a statute or treaty specifically providing for it.
The government’s second line of argument differs from its first in an important respect: the second argument turns on Doe’s status as an alleged enemy combatant and on the military’s attendant authority in a time of war. We agree with the government that, if Doe is an enemy combatant, the military can transfer him to the custody of Country B, a partner in the campaign against ISIL. But under the precedents of the Supreme Court and our court, two conditions must exist for an American citizen to be subject to military transfer or detention as an enemy combatant: (i) there must be legal authority for the Executive to wage war against the enemy, and (ii) there must be an opportunity for the citizen to contest the factual

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determination that he is an enemy combatant fighting on behalf of that enemy. See Hamdi v. Rumsfeld, 542 U.S. 507, 517, 533 (2004) (plurality opinion); Omar v. McHugh, 646 F.3d 13, 24 (D.C. Cir. 2011). Neither the legal inquiry nor the factual inquiry has taken place in this case. In the absence of those inquiries, we see no basis to set aside the district court’s injunction barring the forcible transfer of Doe to Country B.
What about the district court’s order requiring the government to give 72 hours’ notice before transferring Doe to either Country A or Country B? Because the government gave notice of the proposed transfer to Country B, the government’s appeal of the notice order as it applies to Country B is now moot. With regard to Country A, the government has yet to come forward with any information about the circumstances of a prospective transfer to that country, including the specific purpose or interest that will give rise to the transfer. The government instead seeks ex-ante, carte-blanche authorization to transfer Doe to Country A, regardless of the particular circumstances or reasons, and without any opportunity for judicial review. We conclude that the district court did not err in denying the government that sort of blanket preapproval.
While we sustain the district court’s orders, we do so respectful of—and with appreciation for—the considerable deference owed to the Executive’s judgments in the prosecution of a war. That latitude of course extends to military decisions about what to do with enemy combatants captured overseas in a zone of active hostilities. Virtually all such decisions will be unaffected by our decision today.
But when an alleged enemy combatant—even one seized on a foreign battlefield—is an American citizen, things are different. See Hamdi, 542 U.S. at 532-33, 535-37 (plurality); id. at 558-59 (Scalia, J., dissenting). In that “surely . . . rare”

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circumstance, id. at 571 n.3 (Scalia, J., dissenting), the Executive’s authority to wage war as it sees fit is cabined by the Supreme Court’s decision in Hamdi, which requires that a citizen be afforded certain guarantees before the military detains or transfers him under the law of war. Id. at 517, 533 (plurality); Omar, 646 F.3d at 24. That precedent, in our view, governs the disposition of this appeal.
I.
A.
In September 2017, Syrian Democratic Forces encountered Doe at a screening point on an active battlefield in Syrian territory controlled by ISIL. Doe surrendered, informed the Syrian Democratic Forces that he was an American citizen, and asked to speak to U.S. officials. The Syrian Democratic Forces transferred Doe to the custody of U.S. military forces in the region. The military reached a preliminary determination that Doe is an enemy combatant, and has detained him at a U.S. facility in Iraq for the past seven months.
The military’s preliminary determination that Doe is an enemy combatant is based on evidence that he is a member or substantial supporter of ISIL. The evidence against Doe includes the following: the circumstances of his surrender, his statements upon surrender and during detention, and records of his ISIL membership.
ISIL, also known as the Islamic State of Iraq and Syria (ISIS), has been designated as a terrorist group. It controls territory in Iraq and Syria, and has perpetrated and aided terrorism there and around the world, killing several thousand civilians, including American aid workers and journalists. See U.S. Dep’t of State, Bureau of Counterterrorism, Country

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Reports on Terrorism 2016: Chapter 6, Terrorist Organizations (July 2017). Since September 2014, the United States has pursued a counterterrorism strategy against ISIL, and is an active member of a 75-country coalition working to defeat ISIL in Iraq and Syria.
B.
In October 2017, the American Civil Liberties Union Foundation, acting on Doe’s behalf, petitioned the district court for a writ of habeas corpus. The petition asserts that the military’s existing authority to engage in armed conflict does not extend to ISIL, that the military thus lacks legal authority to detain an alleged member of ISIL, and that, as a result, the government must either prosecute Doe in an Article III court or release him. In addition to those legal arguments, Doe contends as a factual matter that he is not an ISIL combatant.
The district court determined that the ACLU had standing to bring the action on Doe’s behalf. The court ordered the government to give the ACLU access to Doe to ascertain whether he wanted to continue the action. Am. Civil Liberties Union Found. v. Mattis, 286 F. Supp. 3d 53, 60-61 (D.D.C. Dec. 23, 2017). On January 5, 2018, the ACLU informed the court that Doe wanted to continue pursuing the habeas petition with the ACLU representing him. The ACLU then asked for an order barring the government from transferring Doe to another country until the court decided the merits of his petition.
On January 23, the district court granted Doe’s request in part. The court entered a preliminary injunction requiring the government to provide 72 hours’ notice before transferring Doe to any other country.

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The court determined that Doe had proven a likelihood of success because the government had failed to demonstrate that it had the requisite legal authority to transfer him to another country. The court further concluded that Doe had shown irreparable injury, reasoning that transfer out of U.S. custody would render him “unable to pursue his habeas petition.” Doe v. Mattis, 288 F. Supp. 3d 195, 200 (D.D.C. Jan. 23, 2018). Finally, the court weighed the government’s interest in maintaining productive diplomatic relations with potential transferee countries against a U.S. citizen’s right to contest the lawfulness of his detention, concluding that both the balance of equities and the public interest favored Doe. Finding the requirements for a preliminary injunction to have been met, the court entered its order requiring 72 hours’ notice so that Doe would have an opportunity to challenge a proposed transfer before it happened.
The government appealed. It initially asked this court to vacate the preliminary injunction so that it could transfer Doe to any country without providing advance notice. No. 18-5032, Gov’t Opening Br. 27-28. In the alternative, the government asked for vacatur of the notice requirement as applied to one specified country “or any other country that the Executive Branch determines has a legitimate interest in petitioner.” Id. at 38. Later, in its reply brief, the government narrowed the scope of its appeal still further, such that it now seeks vacatur of the notice requirement only as applied to Countries A or B. No. 18-5032, Gov’t Reply Br. 2 n.1.
On April 16, 2018, while the government’s appeal of the notice injunction was pending, the government filed a notice in the district court in compliance with that injunction. The notice communicated the government’s intent to transfer Doe to the custody of Country B in 72 hours. Attached to the notice was a sworn declaration from a Deputy Assistant Secretary of State,

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who averred that Country B had expressed a “strong interest” in taking custody of Doe and continuing to detain him in some form. Doe v. Mattis, No. 17-cv-2069, Notice attach. 1 at 4-5 (D.D.C. Apr. 17, 2018), ECF No. 80. Doe moved for a preliminary injunction or temporary restraining order to block the proposed transfer.
On April 19, 2018, the district court granted the preliminary injunction, barring the government “from transferring [Doe] from U.S. custody.” Doe v. Mattis, No. 17cv-2069, Prelim. Inj. (D.D.C. Apr. 19, 2018), ECF No. 88. While the order could be read to bar transfer to any foreign country, we understand it to grant only the relief Doe requested (and thus only the relief the government had notice might be imposed)—that is, a bar on transfer to Country B specifically. Cf. Capital City Gas Co. v. Phillips Petrol. Co., 373 F.2d 128, 131 (2d Cir. 1967). In support of the order, the court again concluded that Doe had demonstrated a likelihood of success on the merits because the government had failed to identify the requisite legal authority for a forcible transfer of Doe to Country B. And for the same reasons it gave when it entered the notice injunction, the court concluded that Doe would be irreparably injured absent an injunction and that the balance of equities and public interest weighed in his favor.
The government appealed the second injunction to this court. It then moved for consolidation of the two appeals and expedited treatment, both of which we granted. This opinion thus resolves both of the government’s appeals. In view of the presumption of public access to judicial proceedings, we have endeavored to fashion the opinion so as to manage redactions while still not revealing the identities of Countries A and B.

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II.
The government appeals two orders granting injunctive relief to Doe: the order requiring the government to give 72 hours’ notice before transferring Doe to Country A or B (the only countries as to which the government appeals the notice obligation); and the order prohibiting the government from transferring Doe to Country B. While both orders are denominated preliminary injunctions, the latter appears to function as a permanent injunction.
A district court facing a request for a preliminary injunction must balance four factors: (i) whether the party seeking the injunction is likely to succeed on the merits of the action, (ii) whether the party is likely to suffer irreparable harm without an injunction, (iii) whether the balance of equities tips in the party’s favor, and (iv) whether an injunction would serve the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The same factors apply when a party seeks a permanent injunction, except the party must show “actual success” on the merits rather than just a likelihood. Id. at 32. We review the district court’s balancing of those considerations for an abuse of discretion, but review any underlying legal conclusions de novo. Abdullah v. Obama, 753 F.3d 193, 197-98 (D.C. Cir. 2014).
A.
We first consider the order enjoining the Secretary from transferring Doe to Country B. We address each of the injunction factors in order.

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1.
In assessing whether Doe has succeeded on the merits, the relevant question is whether, in the circumstances of this case, involuntarily transferring Doe to Country B would be unlawful. We hold that it would be.
The government makes two species of arguments as to why the Executive has the power to transfer Doe to Country B without his consent. The first rationale has no necessary connection to Doe’s designation as an enemy combatant, or even to the wartime context of this case. It instead relies on a general understanding that, when a foreign country wants to prosecute an American citizen already in its territory for a crime committed within its borders, the Executive can relinquish him to that country’s custody for criminal proceedings. The government’s second rationale, unlike the first, hinges on Doe’s status as an enemy combatant. That second strand of the argument relies on the military’s asserted authority under the law of war to transfer an enemy combatant (including an American citizen) to an allied country in the conflict.
Neither of the government’s rationales, we conclude, supports the involuntary transfer of Doe to Country B, at least as things currently stand. In reaching that conclusion, we rely on the same undisputed facts as our dissenting colleague: that Doe is an American citizen, that he is in U.S. custody in Iraq, that the government believes he is an ISIL combatant, and that he objects to the government’s forcible transfer of him to the custody of Country B. Dissent, at 3-4, 27. While our colleague would conclude that the Executive can forcibly transfer Doe to Country B in those circumstances, we respectfully disagree for the reasons explained in this opinion.

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a.
A fundamental attribute of United States citizenship is a “right to . . . remain in this country” and “to return” after leaving. Mandoli v. Acheson, 344 U.S. 133, 139 (1952). That right is implicated when the government seeks to forcibly transfer an American citizen from the United States to a foreign country. To effect such a transfer, the government must both (i) demonstrate that a treaty or statute authorizes the transfer, and (ii) give the citizen an opportunity to challenge the factual basis for the transfer. Valentine v. United States ex rel. Neidecker, 299 U.S. 5, 9 (1936); Collins v. Loisel, 259 U.S. 309, 316-17 (1922).
The government’s first argument in this case, though, is that a citizen loses both of those protections the instant he leaves U.S. territory. When a citizen sets foot outside the United States, the government says, the Executive can forcibly transfer him to the custody of any country having a “legitimate sovereign interest” in him. The transfer, the government emphasizes, would be “total.” No. 18-5110, Gov’t Second Supp. Br. 8. Following the citizen’s transfer, then, he would be fully—and irrevocably—subject to the power of the foreign sovereign now holding him.
i. The government’s contention that it possesses that kind of transfer authority over an American citizen is centrally predicated on Munaf v. Geren, 553 U.S. 674, which is itself predicated on Wilson v. Girard, 354 U.S. 524. We disagree with the government’s understanding of those decisions.
In Wilson, William Girard, a U.S. soldier stationed in Japan, was accused by Japan of committing a homicide in its territory. 354 U.S. at 525-26. The Army agreed to relinquish Girard to Japanese custody for pretrial detention. Id. at 526.

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Girard filed a habeas petition, and the district court issued a preliminary injunction prohibiting the transfer. Id. The Supreme Court vacated the order and allowed the handover of Girard to Japanese custody.
The Court began by recognizing that, as a general matter, a “sovereign nation has exclusive jurisdiction to punish offenses against its laws committed within its borders.” Id. at 529. Japan had voluntarily surrendered that prerogative in a security agreement with the United States that governed the treatment of U.S. soldiers stationed in Japan. But the agreement permitted the United States to cede back to Japan the authority to prosecute a service member in a given instance. Id. at 527-29. In Girard’s case, the United States had done just that. Id. at 529. So the question, the Court said, was whether there was any “constitutional or statutory barrier” to the Executive (i) waiving the United States’s jurisdiction and (ii) transferring Girard to Japan to face criminal prosecution. Id. at 530. Finding no such barrier, the Court sanctioned Girard’s transfer to Japanese custody. Id.
In Munaf, the Court again applied the principle recognized in Wilson—i.e., that, when a foreign country wishes to prosecute an American citizen who is within its borders for a crime he committed while there, the Executive can relinquish him to the country’s custody. Munaf involved two American citizens who voluntarily traveled to Iraq and allegedly committed crimes while there. 553 U.S. at 679. A multinational military coalition identified the two citizens as security risks, and they were held by U.S. military forces in Iraq “[p]ending their criminal prosecution for those offenses” in Iraqi courts. Id. at 705; see id. at 681, 683. Both of the citizens filed habeas petitions, asserting (i) that the Executive lacked the power to transfer them to Iraq’s custody for criminal proceedings, and (ii) that transferring them thus would violate

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the Due Process Clause. Id. at 692. The Court rejected their arguments and allowed the military to relinquish them to Iraqi custody. Id. at 705.
Relying on Wilson, the Court emphasized that a country has a “sovereign right to ‘punish offenses against its laws committed within its borders.’” Id. at 692 (quoting Wilson, 354 U.S. at 529). That sovereign entitlement, the Court observed, was one that the Court had long and repeatedly recognized. Id. at 694-95 (citing, e.g., Schooner Exchange v, McFaddon, 11 U.S. (7 Cranch) 116 (1812); Neely v. Henkel, 180 U.S. 109 (1901); Kinsella v. Krueger, 351 U.S. 470 (1956)). An order prohibiting the Executive from transferring the two petitioners to Iraqi authorities would infringe that time-honored right. 553 U.S. at 697-98. The Executive thus could transfer the petitioners to Iraqi custody without violating the Due Process Clause. Id. at 699-70.
In both Munaf and Wilson, the authority of the Executive to transfer U.S. citizens had no roots in any military authority over enemy combatants under the law of war. Wilson, after all, concerned “the peacetime actions of a [U.S.] serviceman,” not the wartime actions of an enemy combatant. Id. at 699. In Munaf, meanwhile, it is true that the alleged crimes involved insurgent acts committed in a time of war, for which both suspects had been designated “security internees” and one had been deemed an enemy combatant. See id. at 681-84, 705. But the Court’s recognition of the Executive’s power to transfer the two men did not depend on those designations or on the nature of the alleged crimes. That is evident from the Court’s heavy reliance on Wilson, a case having nothing to do with military authority in wartime.
In accordance with that understanding, the Court in Munaf observed that “[t]hose who commit crimes within a sovereign’s

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territory may be transferred to that sovereign’s government for prosecution” even if the “crime at issue” is an inherently nonwar offense like “embezzlement.” Id. at 699-700 (discussing Neely v. Henkel, 180 U.S. 109 (1901)). To be sure, “there is hardly an exception to that rule when the crime” is “unlawful insurgency directed against an ally during ongoing hostilities.” Id. at 700. So while the war-related context in which the crimes arose in Munaf was not a necessary condition for the Executive to possess the transfer authority recognized in Wilson, that context of course did not diminish the Executive’s authority.
ii. In holding that the Executive had the power to transfer the Munaf petitioners, the Court distinguished its previous decision in Valentine v. United States ex rel. Neidecker, 299 U.S. 5. Because Doe chiefly relies on Valentine in arguing that the military lacks authority to transfer him to Country B, whereas the government centrally relies on Munaf in arguing the opposite, the Munaf Court’s treatment of Valentine warrants our careful examination.
In Valentine, three American citizens fled to New York City after being accused by France of committing crimes within its territory. Id. at 6. France requested the citizens’ extradition, and U.S. officials arrested the three men. Id. The men then filed habeas petitions, arguing that, because the extradition treaty between the United States and France contained no obligation for either country to hand over its own citizens, the Executive lacked the power to extradite them. Id. The Court agreed, holding that the power to extradite “is not confided to the Executive in the absence of treaty or legislative provision.” Id. at 8. Valentine thus establishes that the Executive’s power to extradite a citizen from the United States to another country must come from a treaty or statute. Id. at 9; see Munaf, 553 U.S. at 704.

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Relying on Valentine, Doe contends that the Executive cannot transfer him from U.S. custody to another country’s custody unless the transfer is authorized by a treaty or statute. The petitioners in Munaf made the same argument in resisting their transfer to Iraqi custody. Munaf, 553 U.S. at 704. The Court, though, found Valentine “readily distinguishable.” Id. It explained that Valentine “involved the extradition of an individual from the United States.” Id. The Munaf petitioners, by contrast, had “voluntarily traveled to Iraq and [were] being held there.” Id. They were therefore “subject to the territorial jurisdiction of that sovereign, not of the United States.” Id.
The Court, for that reason, denied the contention that the Executive invariably “lacks the discretion to transfer a citizen absent a treaty or statute.” Id. at 705. Wilson, the Court said, “forecloses” that contention. Id. That is because the only conceivable authority in Wilson was the security agreement governing the treatment of U.S. service-members in Japan— which, while authorized by a treaty, was not itself a treaty or statute. Id. “Nevertheless,” the Munaf Court observed, “in light of the background principle that Japan had a sovereign interest in prosecuting crimes committed within its borders,” the Wilson Court had “found no ‘constitutional or statutory’ impediment to the United States’s waiver of its jurisdiction” over Girard and its ensuing transfer of him to Japanese custody. Id.
iii. Because Munaf and Wilson recognized the Executive’s authority to transfer American citizens to foreign custody without having to satisfy Valentine’s treaty-or-statute rule, it is apparent that the Executive need not invariably meet the Valentine test to effect a forcible transfer. So some transfers of American citizens to foreign custody are governed by Valentine; others are not. Into which of those camps does the proposed transfer of Doe to Country B fall?

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In arguing that it can forcibly transfer Doe, the government reads Valentine, Munaf, and Wilson to yield the following set of rules. Under Valentine, an American citizen in the United States cannot be forcibly transferred to a foreign country absent a statute or treaty (such as an extradition treaty) authorizing the transfer. But under Munaf and Wilson, the government says, once a citizen voluntarily leaves the United States, the Executive can pick her up and deliver her to any foreign country that has a “legitimate sovereign interest” in her. No. 18-5032, Gov’t Opening Br. 27; No. 18-5032, Gov’t Reply Br. 15; No. 18-5110, Gov’t Supp. Br. 5; No. 18-5110, Gov’t Second Supp. Br. 3. And a country’s interest in a person qualifies as “legitimate,” the government submits, if, under international law, the country would have “prescriptive jurisdiction” over her—that is, the power to prescribe legal rules regulating her pertinent conduct. No. 18-5032, Gov’t Opening Br. 23 (citing Restatement (Fourth) of the Foreign Relations Law of the United States § 211 (Am. Law Inst. Draft No. 2, 2016)); see also No. 18-5032, Gov’t Reply Br. 15; No. 18-5110, Gov’t Supp. Br. 4-5; No. 18-5110, Gov’t Second Supp. Br. 4.
We cannot accept the government’s submission. Munaf and Wilson do not suggest a general prerogative on the part of the Executive to seize any American citizen voluntarily traveling abroad for forcible transfer to any country with some legitimate sovereign interest in her. Consider again the facts of Valentine. There was no doubt of the legitimacy of France’s interest in the U.S.-citizen petitioners in that case: they had allegedly committed crimes in France. The Executive nonetheless lacked unilateral authority to “dispose of the[ir] liberty” by extraditing them. 299 U.S. at 9. That is because, the Court said, there is generally “no executive discretion to surrender [a person] to a foreign government, unless . . . [a] statute or treaty confers the power.” Id.

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Under the government’s theory, though, everything would have changed the moment one of the Valentine petitioners voluntarily ventured outside the United States—say, on a family vacation to the Canadian side of Niagara Falls. At that moment, the unilateral “executive discretion” found lacking in Valentine ostensibly would have sprung to life, such that the person—though an American citizen—could have been seized by the Executive and forcibly transferred to France. Cf. United States v. Alvarez-Machain, 504 U.S. 655, 669-70 (1992) (involving the seizure in Mexico (of a non-U.S. citizen) for transfer to the United States).
That expansive vision of unilateral Executive power over a U.S. citizen who ventures abroad does not follow from Munaf and Wilson. Those cases did not involve a citizen forcibly transferred from one foreign country they voluntarily visited to the custody of another foreign country. The cases instead involved “the transfer to a sovereign’s authority of an individual . . . already . . . in that sovereign’s territory.” Munaf, 553 U.S. at 704. The petitioners in Munaf had “voluntarily traveled” to Iraq, id. at 681, 683, and the petitioner in Wilson, an Army specialist, was stationed in Japan, 354 U.S. at 525-26. They were “therefore subject to the territorial jurisdiction of [those] sovereign[s], not of the United States.” Munaf, 553 U.S. at 704. The petitioners in those cases, already present in the sovereign’s territory, could be relinquished by the Executive to that sovereign for prosecution of offenses allegedly committed while there.
That transfer power, the Munaf Court explained, is grounded in the receiving country’s “territorial jurisdiction” over a person who has “voluntarily traveled” to its territory and is “being held there.” Id. The government, though, reads Munaf and Wilson to embrace a transfer power extending to a receiving country’s “prescriptive jurisdiction,” not just its

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territorial jurisdiction. E.g., No. 18-5032, Gov’t Opening Br. 23. And a country’s prescriptive jurisdiction under customary international law, the government emphasizes, extends to any “individual with a ‘genuine connection’ to the state, even when the individual is located outside the state’s territory.” Id. (emphasis added); see also Restatement (Fourth) of the Foreign Relations Law of the United States § 211 (Draft No. 2, 2016).
The government is surely correct that a sovereign’s prescriptive jurisdiction—its power to regulate conduct— extends to persons located beyond its borders. The practice of extraditing individuals from abroad, and the existence of laws with extraterritorial reach, both illustrate the point. But the fact that a foreign country may have prescriptive jurisdiction over an American citizen who is outside its territory hardly means that, as long as the citizen is somewhere else abroad, the Executive has power to seize her and deliver her to that foreign country.
Indeed, we know of no instance—in the history of the United States—in which the government has forcibly transferred an American citizen from one foreign country to another. (That includes the case of Amir Meshal, in which the government ardently denied a citizen’s allegations that foreign officials, who had moved him from Kenya, to Somalia, to Ethiopia, were acting at the United States’s behest. See Meshal v. Higgenbotham, 47 F. Supp. 3d 115, 119 (D.D.C. 2014), aff’d, 804 F.3d 417 (D.C. Cir. 2015)). Especially in habeas cases like this one, “history matters.” Omar, 646 F.3d at 19.
To that end, the absence of even a single known example of the unilateral power the Executive claims here is illuminating. Indeed, we are unaware of any involuntary transfer of a U.S. citizen from one foreign country to another even pursuant to a treaty or statute. There is all the more

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reason, then, to proceed with considerable caution before recognizing such a power as a unilateral (although apparently never-before-exercised) prerogative of the Executive.
The implications of the government’s reading of Munaf and Wilson amplify the reasons to reject it. Consider, for example, a U.S. citizen who becomes a journalist, travels to Thailand for a multi-year assignment, and, on returning to the United States, writes articles critical of the Thai King that are alleged to play some role in sparking demonstrations in Thailand. Thailand might well argue that she falls within its prescriptive jurisdiction. And its arguments would have force if, for instance, she underpaid her Thai taxes while there, or her articles were deemed to have had a “substantial effect” within Thailand. See Restatement (Fourth) of the Foreign Relations Law of the United States §§ 211 & cmt. f, 213 (Draft No. 2, 2016).
If the government were right about Munaf and Wilson, then the moment the journalist stepped outside the United States, the Executive would have unilateral power to apprehend her and forcibly transfer her to Thailand if she were accused of violating Thai law. (Incidentally, there is a good reason to think the U.S.-Thai extradition treaty would not apply in that instance, given that it covers only “persons found in the territory of one of the Contracting Parties.” Extradition Treaty, U.S.-Thai., art. 1, Dec. 14, 1983, S. Treaty Doc. No. 98-16.) By the government’s logic, then, alleged breaches of the Thai tax code would authorize a forcible transfer. So too would alleged violations of Thailand’s lèse-majesté statute—under which anyone who “defames, insults, or threatens the [Thai] King . . . shall be punished with imprisonment of three to fifteen years.” Crim. Code B.E. 2499 § 112 (1956), amended by Crim. Code (No. 17), B.E. 2547 (2003) (Thai.); see LeseMajeste Explained: How Thailand Forbids Insult of its

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Royalty, BBC.com (Oct. 6, 2017) (discussing recent lèsemajesté prosecutions).
We cannot accept that, if Thailand were to accuse the American journalist of underpaying taxes or penning articles critical of the King, the Executive would have unilateral power to apprehend and forcibly (and irrevocably) transfer her to Thai custody whenever she ventures outside the United States. Indeed, the implications of the government’s argument are more far reaching still. Imagine that the journalist is a dual citizen of the United States and Thailand. If so, Thailand would have prescriptive jurisdiction over her regardless of any violation of Thai law, because, like all sovereigns, it has an “interest in retaining control over its nationals and residents, wherever they may be.” Restatement (Fourth) of the Foreign Relations Law of the United States § 214 cmt. a (Draft No. 2, 2016). Under the government’s theory, then, the Executive could forcibly transfer the journalist to Thai custody for any reason Thailand saw fit, including, say, that she would be a useful witness in a Thai trial. Cf. Blackmer v. United States, 284 U.S. 421, 436-37 (1932).
Thailand’s mere desire to have one of its citizens back cannot give the Executive the unilateral authority to forcibly transfer an American there, just because she steps outside the United States. After all, a dual citizen “is entitled to all the rights and privileges of [U.S.] citizenship.” Perkins v. Elg, 307 U.S. 325, 349 (1939). That includes the “right to return to and remain” in the United States after having left. Mandoli, 344 U.S. at 139.
To be sure, if Thailand asked the United States for help in delivering the journalist to its custody (Thailand presumably would be reluctant to seize a U.S. citizen on its own), the Executive could (and presumably would) decline to do so as a

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matter of discretion. But the question for us is an antecedent one: whether, in the first place, the Executive would have the unilateral power to forcibly transfer an American citizen to another country merely because she travels abroad. We think the answer is no.
The government emphasizes that, on the facts of this case, Doe is not just any citizen who traveled someplace abroad and is suspected of conduct like tax evasion. Rather, he went to an active battlefield; and Country B, a “coalition partner[] in an ongoing armed conflict” against ISIL, has, the government says, “an obvious and legitimate interest in taking custody of” him. No. 18-5032, Gov’t Reply Br. 6.
Those circumstances, however, do not give the Executive transfer power under Munaf and Wilson that it would otherwise lack. Munaf and Wilson, as explained, do not rest on the military’s authority under the law of war. And we have declined to read those decisions to manifest a principle of prescriptive jurisdiction under which the Executive can forcibly transfer a U.S. citizen who has traveled abroad to any other country with a legitimate sovereign interest in her. That a country may have an especially important interest in a citizen—including by reason of her allegedly hostile actions against the country’s interests in a time of war—does not affect that conclusion.
Does this mean that the military necessarily is without power in a time of war to transfer an enemy combatant who is a U.S. citizen to an allied country’s custody? No, it does not. It means that the authority to effect such a transfer does not come from the general transfer power recognized in Munaf and Wilson. The authority instead would come from the Executive’s wartime powers under the law of war, a subject we turn to next.

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b.
The government, as noted, has said in this case that its “determination that [Doe] is an enemy combatant . . . is not the basis for the U.S. military’s authority to transfer” him to Country B. No. 18-5032, Gov’t Reply Br. 8. At the same time, though, the government has also said that “battlefield detainees” like Doe are “lawfully transferrable under the laws of war.” Id. at 11; see also id. at 13 (“[P]etitioner’s status as a U.S. citizen imposes no special constraints on the U.S. military’s ability to transfer him consistent with the laws of war.”); No. 18-5110, Gov’t Second Supp. Br. 3 (arguing that transfer is permissible, in part because of “the Department of Defense’s good-faith determination . . . that [Doe] is an enemy combatant”).
We now take up the latter facet of the government’s claim of authority to transfer Doe: that it can do so pursuant to the Executive’s wartime powers under the law of war. We conclude that the Executive does generally possess authority under the law of war to transfer an enemy combatant to the custody of an ally in the conflict. But that authority, we hold, could potentially support a transfer of Doe only if the government (i) demonstrates that it is legally authorized to use military force against ISIL, and (ii) affords Doe an adequate opportunity to challenge the Executive’s factual determination that he is an ISIL combatant.
i. The starting point for our analysis is the Supreme Court’s decision in Hamdi v. Rumsfeld, 542 U.S. 507 (2004). (Because the plurality in Hamdi issued the controlling opinion, which our court has treated as binding, see Al-Bihani v. Obama, 590 F.3d 866, 872 (D.C. Cir. 2010), we will treat the plurality opinion as that of the Court for purposes of this opinion.) There, the Court spoke directly to the military’s authority over

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an American citizen under the law of war. The case involved Yaser Esam Hamdi, who, like Doe, was captured on a foreign battlefield, where the government alleged he had fought with the Taliban against the United States. Id. at 510, 512-13. Hamdi, again like Doe, was a dual citizen of the United States and Saudi Arabia. See Man Held as Enemy Combatant to Be Freed Soon, CNN.com (Sept. 22, 2004.)
The military initially detained Hamdi in Afghanistan and at Guantanamo Bay, and then, upon learning he was an American citizen, brought him to the United States for continued detention. 542 U.S. at 510. Hamdi then filed a habeas petition seeking release from his military custody, alleging that his detention without criminal charge violated his rights under the Due Process Clause. Id. at 511.
The Court first held that the military had legal authority to detain Hamdi for the duration of the conflict in which he was captured. That power flowed from the 2001 Authorization for Use of Military Force (AUMF), Pub. L. No. 107-40, 115 Stat. 224. 542 U.S. at 517. The 2001 AUMF authorized the President to “use all necessary and appropriate force against those nations, organizations, or persons [that] he determines planned, authorized, committed, or aided the terrorist attacks” of September 11, 2001. Id. at 510 (quoting 115 Stat. 224, § 2(a)). The Court found “no doubt” that Taliban combatants (like Hamdi was alleged to be) fit within that description. Id. at 518. And the Court explained that detention of enemy combatants “for the duration of the particular conflict in which they were captured” is “so fundamental and accepted an incident to war as to be an exercise of the ‘necessary and appropriate force’ Congress ha[d] authorized the President to use.” Id.

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The Court next addressed whether Hamdi’s U.S. citizenship affected the Executive’s power to detain him. On that issue, the Court found “no bar to this Nation’s holding one of its own citizens as an enemy combatant.” Id. at 519. After all, “[a] citizen, no less than an alien, can be part of or supporting forces hostile to the United States or coalition partners and engaged in an armed conflict against the United States.” Id. (internal citation and quotation marks omitted).
Finally, the Court turned to “the question of what process is constitutionally due to a citizen who disputes his enemycombatant status.” Id. at 524. The government argued that its determination to that effect should be subject to highly deferential review, solely to confirm the existence of some evidence supporting it. Id. at 527. The government emphasized the “limited institutional capabilities of courts in matters of military decision-making in connection with an ongoing conflict.” Id. The Court disagreed with the government.
Because “due process demands some system for a citizendetainee to refute his classification,” the Court explained, “the proposed ‘some evidence’ standard [was] inadequate.” Id. at 537. Rather, “a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker.” Id. at 533. That process, the Court observed, could potentially be afforded in a military proceeding. Id. at 538. The Court also clarified, however, that “initial captures on the battlefield need not receive the process” the Court had outlined. Id. at 534. Rather, that “process is due only when the determination is made to continue to hold” a combatant. Id.

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After Hamdi, we know that if there is legal authority to exercise military force against an enemy, that authority encompasses detention of an enemy combatant for the duration of the conflict. And we further know that the detention authority more generally extends to an enemy combatant who is an American citizen. But a citizen, Hamdi instructs, must have a meaningful opportunity to challenge the factual basis for his designation as an enemy combatant in accordance with the procedures set forth by the Court.
ii. Whereas Hamdi addressed whether the Executive can detain an alleged enemy combatant who is a citizen, this case (at least at this stage) instead involves whether the Executive can transfer him to the custody of another country. That naturally raises two sets of questions. First, is the Executive’s transfer authority (this case) on par with its detention authority (Hamdi) as a fundamental incident of waging war? Second, if so, is the Executive’s exercise of transfer authority against a U.S. citizen subject to the same conditions attending the exercise of detention authority against a U.S. citizen? In other words, do transfer authority over citizens and detention authority over citizens essentially rise or fall together? We conclude they do.
First, the military possesses settled wartime authority under the law of war to transfer enemy combatants to allied countries. That power, in the words of Hamdi, is “a fundamental incident of waging war,” such that the Executive generally has the authority to transfer when it has legal authorization to engage in hostilities. Id. at 519.
Congress confirmed as much in the National Defense Authorization Act (NDAA) for Fiscal Year 2012, Pub. L. No. 112-81, 125 Stat. 1298 (Dec. 31, 2011). There, Congress elaborated on the authority conferred by the 2001 AUMF. It

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affirmed that the AUMF grants detention authority pending decision of an enemy combatant’s “disposition under the law of war”; and it enumerated the available “dispositions” to include “[t]ransfer to the custody or control of the person’s country of origin, any other foreign country, or any other foreign entity.” Id. § 1021(a), (c). Congress thus expressly considers transfer of an enemy combatant to be one option available to the military under the law of war. The Department of Defense’s directives are to the same effect. U.S. Dep’t of Def., Directive No. 2310.01E, § 3.m (May 24, 2017).
That understanding is firmly rooted in historical practice. “Throughout the 20th Century, the United States transferred or released hundreds of thousands of wartime alien detainees— some of whom had been held in America—back to their home countries, or in some cases, to other nations.” Kiyemba v. Obama, 561 F.3d 509, 519-20 (D.C. Cir. 2009) (Kavanaugh, J., concurring). In World War I, for instance, the United States regularly transferred captured combatants to France, an ally. See George G. Lewis & John Mewha, History of Prisoner of War Utilization by the United States Army 1776-1945, Dep’t of the Army Pamphlet No. 20-213, at 59 (1955), available at https://cgsc.cdmhost.com. And in World War II, the United States transferred hundreds of thousands of Axis soldiers to allies like Belgium, France, and Luxembourg, where the soldiers were used as agricultural workers and underwent rehabilitation. Id. at 240-41. Transfers to allies were also commonplace during the Vietnam and Gulf Wars. See George S. Prugh, Law at War: Vietnam 1964-1973, at 62 (1975); U.S. Dep’t of Def., Office of Gen. Counsel, Law of War Manual at 633 n.742 (Dec. 2016). “Transfers,” in short, “are a traditional and lawful aspect of U.S. war efforts.” Kiyemba, 561 F.3d at 519 (Kavanaugh, J., concurring).

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Even if transfers of alien combatants have been a regular feature of warfare, does the traditional authority to transfer enemy combatants extend to a U.S. citizen? On this score, the historical evidence is sparse. As noted, we know of no instance in which the Executive has forcibly transferred a citizen from one foreign country to another; and that includes wartime transfers of enemy combatants.
Hamdi, however, instructs that a traditional military power over enemy combatants in wartime should generally be assumed to encompass American citizens. The Court reasoned that a citizen, “no less than an alien,” can be a part of an enemy force. 542 U.S. at 519. For that proposition, the Court relied on its decision in Ex parte Quirin, 317 U.S. 1 (1942), in which it had upheld the military trial of a U.S. citizen for his unlawful belligerency in support of the enemy in World War II, id. at 3031.
To be sure, Justice Scalia, dissenting in Hamdi, discounted Quirin as “not [the] Court’s finest hour.” 542 U.S. at 569 (Scalia, J., dissenting). He would have held that the military’s wartime authority over enemy combatants—including, presumably, transfer authority—does not extend to a U.S. citizen (at least absent a suspension of the writ by Congress). See id. at 554. The Court, though, adhered to Quirin notwithstanding Justice Scalia’s critique. Id. at 522-23. It thus found no reason to exclude U.S. citizens from the Executive’s fundamental authority under the law of war to detain enemy combatants for the duration of a conflict. Id. at 519. Following the approach set out in Hamdi, we similarly see no basis for excluding a citizen—at least as a categorical matter—from the Executive’s wartime authority to transfer enemy combatants.
Hamdi referenced a Ninth Circuit decision upholding the Executive’s power to detain, as a prisoner of war, a dual U.S.-

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Italian citizen who was a member of the Italian forces in World War II. Id. at 524 (discussing In re Territo, 156 F.2d 142 (9th Cir. 1946)); see also Ronald D. Rotunda, The Detainee Cases of 2004 and 2006 and Their Aftermath, 57 Syracuse L. Rev. 1, 13 n.73 (discussing Territo’s dual citizenship). That decision also contemplated that he would be sent from the United States back to Italy at the war’s end. See 156 F.2d at 144. True, that contemplated transfer would have been a “repatriation” to the enemy state, which, under the law of war, is distinct from a transfer to an ally (and which, presumably, would result in release rather than continued detention). Compare Geneva Convention (III) Relative to the Treatment of Prisoners of War, art. 12, Aug. 12, 1949, 6 U.S.T. 3316, with id. at art. 118. And Territo’s repatriation might well have been voluntary, especially given his family and other connections to Italy (he sought release from his detention in the U.S, and the opinion gives no indication that he wanted to stay here if released). See 156 F.2d at 143. Still, Territo offers modest support for the conclusion that the Executive’s power to transfer under the law of war applies to both aliens and citizens. And Hamdi, again, teaches that both aliens and citizens may be subject to the Executive’s wartime authority.
Second, having determined that the Executive has authority to transfer enemy combatants under the law of war, and that there is no blanket exemption from that power for U.S. citizens, we now assess whether Hamdi’s conditions on the exercise of detention authority equally govern any exercise of transfer authority. Those conditions, again, are that the Executive have legal authority to use military force against the relevant enemy (here, ISIL), and that the citizen be afforded the process laid out in Hamdi for challenging the factual determination that he is an enemy combatant.

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In considering whether transfer should be subject to those conditions, an initial point bears noting: the transfer of a citizen to another country’s custody, unlike continued detention of that citizen, is irrevocable. Once the Executive relinquishes custody of an American citizen to another country, our government, and our laws—including our law’s habeas guarantee, which a detainee can use to seek relief from detention over time—would be unavailable to her, perhaps in perpetuity. Decisions about the duration and conditions of her custody, and about the availability to her of a means of challenging her confinement, would be entirely up to the detaining sovereign.
The government asserts that, when we assess a potential transferee’s liberty interests, we cannot factor in her continued detention in the receiving country. That, the government says, follows from our holding in Kiyemba. 561 F.3d at 515-16. Here, though, the central issue is not the prospect of continued detention in Country B, but rather the forcible transfer itself, which would involuntarily send an American citizen from U.S. custody to the custody of another country.
In that regard, Kiyemba is starkly different; there, it was undisputed that the detainees had no cognizable interest against being moved from Guantanamo to a foreign country. (Indeed, because transfer was the only relief available to the petitioners—who, as aliens, had no right to be released into the United States—they affirmatively sought to be moved to a foreign country. Id. at 519 n.5 (Kavanaugh, J., concurring)). Here, by contrast, the transfer centrally implicates Doe’s interest in not being forcibly moved into Country B’s custody. Indeed, involuntary transfer of a citizen to the custody of another sovereign—including via extradition—undoubtedly involves fundamental liberty interests that can be vindicated in habeas corpus. E.g., Valentine, 299 U.S. at 9 (“no executive

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prerogative to dispose of the liberty of the individual” by way of extradition); Landon v. Plasencia, 459 U.S. 21, 36 (1982). Cf. Sessions v. Dimaya, 138 S. Ct. 1204, 1213 (2018) (deportation from the United States can be viewed a more “severe penalty” for criminal misconduct than imprisonment in the United States).
Given that transfers involve fundamental liberty interests, we see no basis for concluding that, for the transfer of a citizen (as opposed to the detention of a citizen), the Executive need not satisfy the Hamdi conditions. The 2012 NDAA is instructive in this regard. There, Congress set out four types of “disposition[s] under the law of war” that the Executive could choose for an enemy combatant, including “[d]etention under the law of war without trial until the end of the hostilities,” and “[t]ransfer to the custody or control of the person’s country of origin [or] any other foreign country.” Pub. L. No. 112-81 § 1021(c)(1), (4). The statutory structure indicates that Congress saw transfer and detention as two options falling on largely the same plane—not as one option (transfer) broadly available in circumstances in which the other (detention) would not be.
Significantly, our decisions draw an equivalence between transfer of citizens and detention of citizens. We have rejected the notion “that the Executive Branch may detain or transfer Americans or individuals in U.S. territory at will, without any judicial review of the positive legal authority for the detention or transfer.” Omar, 646 F.3d at 24 (emphases added). And we have said that “Congress cannot deny an American citizen or detainee in U.S. territory the ability to contest the positive legal authority (and in some situations, also the factual basis) for his detention or transfer unless Congress suspends the writ.” Id. (emphasis added). For either “detention or transfer,” then, an

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“American citizen” is entitled to challenge both “legal authority” and “factual basis,” as Hamdi envisions.
The government reads the just-quoted language from our decision in Omar to say that an American citizen can bring a “legal authority” or “factual basis” challenge to her “detention or transfer” only if she is in the United States. See No. 18-5032, Gov’t Reply Br. 14. That is an unsustainable reading. Hamdi itself rejects the notion that it could “make a determinative constitutional difference” if an American citizen were detained overseas rather than in the United States. 542 U.S. at 524. The Court understood that any such conclusion would “create[] a perverse incentive” to hold American citizens abroad. Id.
The Omar court’s reference to a challenge brought by “an American citizen or detainee in U.S. territory” thus plainly speaks to a challenge brought by a citizen anywhere or by an alien detained in U.S. territory (such as Guantanamo Bay). Omar, 646 F.3d at 24 (citing Boumediene v. Bush, 553 U.S. 723, 785-86 (2008)); see also Al Bahlul v. United States, 767 F.3d 1, 65 n.3 (D.C. Cir. 2014) (Kavanaugh, J., concurring in the judgment in part and dissenting in part) (“As a general matter, the U.S. Constitution applies to U.S. citizens worldwide and to non-U.S. citizens within the 50 states and the District of Columbia[.]”). There is no basis for thinking that a citizen relinquishes her right to bring a legal challenge to her detention—or, equivalently, to her transfer—if she is detained in (or transferred from) a foreign country. That is why the court in Omar went on to explain that Omar (one of the two Munaf petitioners), who was still being held in Iraq, had the requisite opportunity to contest the legal authority for his transfer. Id. That discussion would have been entirely unnecessary if he had no right to bring that challenge in the first place since he was held overseas.

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Consider the implications if there were, in fact, an asymmetry between transfer and detention, such that the Executive could transfer a U.S. citizen to another country without meeting the Hamdi conditions. With regard to legal authority, the military could irrevocably transfer a citizen thought to be an enemy combatant even if judicial review would have revealed that the Executive lacked lawful authority to use military force against the particular enemy. In that event, detainees in U.S. custody—and thus protected by U.S. law— would need to be released or criminally charged. But for those who had already been transferred to another country, an American court could not order their return or grant them comparable relief.
With regard to a factual-basis challenge, the Hamdi Court sought to “meet the goal of ensuring that the errant tourist, embedded journalist, or local aid worker has a chance to prove military error.” 542 U.S. at 534. The procedural guarantees prescribed by the Court were intended to guard against an undue risk of an erroneous military determination. See id. But if the transfer of a citizen could be accomplished without affording her those protections, a risk of error thought unacceptable for continued detention would be present for an irrevocable transfer to another country. An “errant tourist” might then be protected against detention but unable to avoid an irrevocable transfer to another country’s custody. Compare 31A Am. Jur. 2d Extradition § 120 (2d ed. 2018) (describing process granted to persons subject to extradition); 18 U.S.C. § 3191.
The government, in that respect, relies on its having made a “good-faith determination, supported by extensive record evidence, that [Doe] is an enemy combatant.” No. 18-5110, Gov’t Second Supp. Br. 3. We do not doubt the government’s good faith. Nor do we discount the importance of the need to

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avoid unduly burdening the Executive’s prosecution of a war, which concerned the Hamdi Court as well. See 542 U.S. at 531-35. But in Hamdi, one point on which eight Justices agreed was that, in the case of an American citizen, the government’s good-faith determination that he is an enemy combatant is not enough to justify his detention for the duration of a conflict. Id. at 537; id. at 553 (Souter, J., concurring in part, dissenting in part, and concurring in the judgment); id. at 564-65 (Scalia, J., dissenting). We find the same to be true of an irrevocable transfer to another country’s custody.
In that regard, it is instructive to consider the implications of the government’s argument here for the facts of Hamdi itself. Upon holding that the government’s continued detention of Hamdi was contingent on his having a meaningful opportunity to challenge the factual basis for his detention, the Court remanded the matter so that the government could conduct the factfinding process the Court had outlined. See 542 U.S. at 538-39. That process would result in a determination of whether Hamdi was a person against whom military force could be applied.
Under the government’s argument here, though, the Executive, rather than grant Hamdi that process following remand, could have simply avoided it by choosing instead to forcibly and irrevocably transfer him to the custody of another country (pursuant to its authority under the 2001 AUMF). True, the government eventually did in fact transfer Hamdi to Saudi Arabia—but with his consent, not over his objection (and after he renounced his American citizenship). Jerry Markon, Hamdi Returned to Saudi Arabia, Washington Post (Oct. 12, 2004). There is, of course, a vast difference between a voluntary transfer and an involuntary one. As to the latter, we do not believe the Hamdi Court would have countenanced Hamdi’s forcible transfer to another country unless he were

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first afforded the process the Court held he was constitutionally due.
The government’s final argument on this score is that transfer without process is permissible if effected in conjunction with “initial capture[] on the battlefield.” No. 185110, Gov’t Supp. Br. 8-9 (quoting Hamdi, 542 U.S. at 534). But while Hamdi allows for temporary detention without process attending “initial capture,” a citizen can be released if there ends up being an insufficient factual basis to continue detention. Transfer may be different because it, by nature, is not temporary.
In addition, there would be no citizenship-based limit on transfer unless there were reason to know that a person is a citizen. Cf. Asbury Aff. at 4, United States v. Lindh, No. Crim. 02-MJ-51 (E.D. Va. Jan. 15, 2002) (“[Harakat ul-Mujahideen] officials told [John Walker Lindh] not to admit to anyone that he was American but to say, if asked, that he was from Ireland.”) Here, at any rate, the Executive decided to transfer Doe—and reached an agreement to do so—several months after his capture. Doe v. Mattis, No. 17-cv-2069, Notice at 1 (D.D.C. Apr. 16, 2018), ECF No. 77; Status Hr’g Tr. at 8 (D.D.C. Jan. 22, 2018), ECF No. 55 (stating that no final decision had been made on whether to transfer Doe). This transfer decision, then, was not a battlefield judgment. For those reasons, the Executive cannot transfer Doe at this stage unless he receives the process required by Hamdi.
c.
In light of the above analysis, can the Executive involuntarily transfer Doe to Country B? We conclude it cannot, at least as things stand now. We take up the two strands of the government’s argument in order.

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i. We first address whether the Executive can forcibly transfer Doe to Country B based on the general transfer authority recognized in Munaf and Wilson. That authority, as we have explained, does not encompass the forcible transfer of a citizen from one foreign country to the custody of another foreign country. Insofar as the transfer of Doe to Country B would be an inter-country transfer, it falls outside of Munaf and Wilson.
The government contends that the transfer nonetheless should be allowed because Doe is a dual citizen of the United States and Country B (Saudi Arabia). As a result, the government emphasizes, Country B has an especially strong interest in accepting custody over Doe: the interest in repatriating one of its own nationals in order to attempt to rehabilitate him consistent with its own laws and practices.
To that end, the government notes that a country always has prescriptive jurisdiction over its own nationals, including when they are abroad. See No. 18-5032, Sealed Gov’t Opening Br. 23 (citing Restatement (Fourth) of the Foreign Relations Law of the United States § 214 & cmt. a (Draft No. 2, 2016)); No. 18-5032, Sealed Gov’t Reply Br. 15; No. 18-5110, Sealed Gov’t Supp. Br. 4; No. 18-5110, Sealed Gov’t Second Supp. Br. 4. And by carrying out the transfer, the government urges, the United States also would further its own interest in maintaining constructive relations with an ally in the military efforts against ISIL (which would, among other benefits, allow for productive discussions with Country B about the transfer of additional combatants in the future). See No. 18-5032, Gov’t Opening Br. 24.
We do not doubt the weight of Country B’s sovereign interests in (and prescriptive jurisdiction over) Doe based on all of those considerations, including, in particular, his Saudi

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citizenship. Nor do we question the Executive’s assessment of Country B’s interests. See Kiyemba, 561 F.3d at 515. But the strength of Country B’s interests in Doe as a Saudi citizen does not diminish the force of Doe’s rights as a U.S. citizen: here, the right to resist the Executive’s forcible seizure and transfer of him to the custody of another country. After all, “dual citizenship presupposes rights of citizenship in each country.” Kawakita v. United States, 343 U.S. 717, 725 (1952); see Elg, 307 U.S. at 345. And the limits on unilateral Executive authority ultimately “protect the individual.” Bond v. United States, 564 U.S. 211, 222 (2011).
Recall, for instance, the example introduced earlier based on the facts of Valentine: while Valentine held that the Executive lacked unilateral authority to extradite the petitioners to France, the Executive, under the government’s theory, would have gained that authority the moment one of the petitioners stepped across the border into Canada.
Now imagine that the same petitioner had been a dual U.S.-French citizen. True, his French citizenship would have fortified France’s sovereign interests in him (which were already substantial given his alleged commission of crimes in France). But his U.S. citizenship still would have meant that the Executive could not extradite him to France from the United States. See Valentine, 299 U.S. at 10-13. And it still would be anomalous to suppose that the Executive gained the ability to transfer him merely because he set foot in Canada.
Doe’s dual citizenship, in short, does not affect our conclusion that the transfer authority recognized in Munaf and Wilson is inapplicable in this case.
ii. We now turn to whether the forcible transfer of Doe to Country B can be supported by the Executive’s wartime

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authority over enemy combatants under the law of war. That authority, as we have explained, encompasses transfers of enemy combatants to an allied country. But before the Executive could exercise that transfer power against Doe, the two Hamdi conditions would need to be met.
The first condition is a determination that the Executive has legal authority to wage war against ISIL. “For wartime military transfers,” we have said, “Article II and the relevant Authorization to Use Military Force generally give the Executive legal authority to transfer.” Omar, 646 F.3d at 24. Second, Doe would need to be afforded a meaningful chance to rebut the government’s factual assertion that he is an ISIL combatant, per the requirements set out in Hamdi.
Neither condition has been met at this point. Until those conditions are satisfied, the Executive lacks power under the law of war to transfer Doe to Country B on the basis of his status as an alleged ISIL combatant.
2.
Having addressed Doe’s success on the merits of his claim that a forcible transfer to Country B would be unlawful, we now consider whether he has shown he would be irreparably injured absent the injunction. See Winter, 555 U.S. at 20. We conclude he has made that showing.
A forcible transfer of Doe to the custody of Country B, the government explains, would be “bona fide and total,” in that “[o]nce transfer is effectuated,” he “would be entirely in [Country B’s] custody,” without any continuing oversight by— or recourse to—the United States. No. 18-5032, Gov’t Reply Br. 15. Doe, wishing to avoid that irrevocable change in his station, objects to his proposed transfer to the custody of

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Country B. No more is required to demonstrate that he would face irreparable injury if he were involuntarily (and irreversibly) handed over to Country B in violation of his constitutional rights.
In contending that Doe fails to establish irreparable injury, the government observes that the point of a habeas petition is to obtain release from U.S. custody. And if the planned transfer of Doe to Country B goes forward, the government observes, he would no longer be in U.S. custody. So transfer, the government says, is thus tantamount to release, and there can be no “irreparable harm from obtaining the very relief his habeas action seeks to obtain.” No. 18-5110, Gov’t Supp. Br. 10.
The government’s position cannot be correct. It would mean that any habeas petitioner objecting to a planned extradition of him would be unable to demonstrate irreparable injury if he were extradited. We know that is not the case. See Belbacha v. Bush, 520 F.3d 452, 456 (D.C. Cir. 2008) (collecting cases granting stays of extradition); Demjanjuk v. Meese, 784 F.2d 1114, 1118 (D.C. Cir. 1986) (“extradition of petitioner to Israel may qualify as a threat of irreparable harm”); see also Nken v. Holder, 556 U.S. 418, 434-35 (2009) (noting “irreparable nature of harm from removal before decision on a petition for review”). Of course, a transfer to a foreign country’s custody necessarily ends U.S. custody; but the transfer itself is a harm that cannot be remedied.
The government similarly observes that, if Doe were released from his U.S. custody in Iraq, he would likely be detained by Iraq. Or, the government says, he might be seized in Iraq by another country. As a result, the government contends, there would be a limited practical difference between

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the release sought by Doe and a transfer to another country. No. 18-5110, Gov’t Supp. Br. 10-11.
That argument again proves too much. As to the first point, if detention in Iraq were equivalent to detention in another country for purposes of irreparable injury, then a citizen who could lawfully be transferred to one country could never secure an injunction prohibiting his ensuing transfer to any other country. By the government’s logic, once the Munaf Court blessed the petitioners’ transfer to Iraq, they would have been categorically precluded from getting an injunction barring their transfer to Albania, Zambia, or any country in between. As to the second point, once a petitioner is released, he could conceivably be seized by any country. So if the mere possibility of apprehension by a country meant that a petitioner would not be harmed by transfer there, then courts could never enjoin a transfer to any country on the globe. That is not the law.
3.
When a private party seeks injunctive relief against the government, the final two injunction factors—the balance of equities and the public interest—generally call for weighing the benefits to the private party from obtaining an injunction against the harms to the government and the public from being enjoined. See Pursuing America’s Greatness v. FEC, 831 F.3d 500, 511 (D.C. Cir. 2016). We find the balance to tip in Doe’s favor.
The equities at stake on both sides are manifestly weighty ones. The government seeks to avoid undue interference with its military judgments in connection with ongoing hostilities and with its conduct of foreign relations with a coalition partner in that campaign. Doe, meanwhile, seeks to vindicate his rights

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as an American citizen to avoid a forcible and irrevocable transfer to (potentially indefinite) custody at the hands of a foreign sovereign.
As the Supreme Court observed in Hamdi, a citizen’s “interest in being free from physical detention” is the “most elemental of liberty interests.” 542 U.S. at 529. The Court therefore denied the Executive the ability to continue detaining an alleged enemy combatant in wartime unless it afforded him procedural protections the Court thought he was constitutionally owed. And the Court did so despite the government’s belief that affording additional process would be unnecessary and unworkable. See id. at 525. Here, we conclude an injunction barring Doe’s forcible transfer to Country B’s custody is warranted for substantially similar reasons and in substantially similar circumstances.
B.
The government also appeals the district court’s order requiring it to give 72 hours’ notice before transferring Doe to either Country A or Country B. With regard to Country B, the government gave the district court the requisite notice before attempting to effect an agreed-upon transfer. When a defendant complies with an injunction in that fashion, its appeal of the injunction becomes moot. See People for the Ethical Treatment of Animals, Inc. v. Gittens, 396 F.3d 416, 421 (D.C. Cir. 2005). At any rate, now that we have sustained the injunction barring Doe’s transfer to Country B, any requirement to give advance notice of such a transfer is beside the point.
The notice requirement still presents an ongoing controversy with regard to Country A, however. An order requiring the government to give advance notice before

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transferring a detainee to another country cannot be sustained if there could be no grounds for enjoining the transfer. See Kiyemba, 561 F.3d at 514. The government relies on that principle here, contending that any transfer of Doe to Country A invariably would be lawful. We are unpersuaded.
As an initial matter, we note that, because of the way this case developed, Doe did not have a meaningful opportunity to address a potential transfer to Country A. In the government’s opening brief, it made three alternative requests for relief: (i) vacatur of the injunction in its entirety, (ii) vacatur of the injunction as applied to any “country that the Executive Branch determines has a legitimate interest” in Doe, or (iii) vacatur as applied only to one specified country. See No. 18-5032, Gov’t Opening Br. 38. Indeed, the government’s opening brief noted the possibility of transferring Doe to Country A only in passing in a footnote. Id. at 31 n.5. Such a reference is ordinarily inadequate to preserve an argument. See CTS Corp. v. EPA, 759 F.3d 52, 64 (D.C. Cir. 2014). And while the government specifically included Country A as a possible transferee country in its reply brief, that was too late. See Abdullah, 753 F.3d at 199-200.
The lateness of the government’s suggestion that it might wish to transfer Doe to Country A is magnified, because, on the existing record, we know very little about what such a transfer would entail. Unlike with Country B, with whom the government has reached an agreement to transfer Doe, we are aware of no concrete plans in the works (or on the horizon) to transfer Doe to Country A. Indeed, the government has not submitted a single affidavit or declaration discussing a transfer of Doe to Country A, the reasons that might give rise to an agreement to transfer Doe there, the terms or expectations surrounding such a transfer, or the anticipated conditions of his custody after that transfer. The government has listed at a high

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level of generality some possible interests Country A could have in mind if it were to accept custody of Doe. See No. 185032, Gov’t Reply Br. 8-9. But even with regard to that array of potential interests, we do not know whether a transfer of Doe would occur only for those reasons.
The government thus essentially seeks blanket preapproval to transfer Doe to Country A, regardless of the reasons or circumstances. We decline to recognize that sort of carte-blanche license in the present circumstances. In Munaf, the Supreme Court upheld the transfer of the two habeas petitioners to Iraq’s custody, but only after examining the reasons for the proposed transfers and the governing law. See Omar, 646 F.3d at 24. Here, the government asks for an allpurpose preapproval without any opportunity to assess a particular transfer before it takes place. Particular transfers to Country A may or may not be unlawful depending on the circumstances. The notice requirement secures the ability to make that assessment at a suitable time.
In these circumstances, we cannot set aside the notice requirement as to Country A. In terms of likelihood of success on the merits, with notice of the possibility of a transfer to Country A and at least some factual information about what such a transfer might entail, Doe would have had an opportunity to show that a particular transfer to Country A would be unlawful. With regard to irreparable injury, a particular transfer arrangement, depending on the circumstances, could irrevocably injure his interests, and Doe did not have an opportunity to address in his briefing the potential harm he would suffer if transferred to Country A. And the remaining injunction factors could favor Doe in the context of a concrete transfer proposal.

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None of this is to say that, in the end, Doe necessarily will be able to show that any agreed-upon transfer to Country A (Iraq) is unlawful. He may or may not be able to do so, depending on considerations such as: (i) whether, given the way Doe came to be in Iraq, his presence there qualifies as “voluntar[y],” Munaf, 553 U.S. at 704, and (ii) whether the reasons for an agreed-upon transfer should bring the case within Munaf’s rule allowing transfers of citizens already within a country’s borders. At this point, without any information about an agreed-about transfer, we decline to set aside the notice requirement with regard to Country A.
* * * * *
We affirm the district court’s injunction barring the government from transferring Doe to Country B, and we also affirm the district court’s injunction requiring the government to give 72 hours’ notice before transferring him to Country A.
Our disposition will constrain the government’s ability to transfer an American citizen believed to be an enemy combatant more than the government would like. That is an important consideration in this case in light of the deference owed to military judgments in wartime. But “such cases,”— i.e., those in which “a United States citizen [is] captured in a foreign combat zone”—“must surely be rare.” Hamdi, 542 U.S. at 571 n.3 (Scalia, J., dissenting) (formatting altered).
In those rare cases, the constraints on the Executive could, in theory, discourage the Executive from taking custody of a suspected enemy combatant known to be an American citizen. That was equally true, though, of the Supreme Court’s decision in Hamdi, which established constraints on the Executive’s treatment of U.S. citizens captured on a foreign battlefield. We

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adhere to that decision and apply it to military transfers, consistent with our precedent. See Omar, 646 F.3d at 24.
The Hamdi Court believed it “unlikely” that its decision would have a “dire impact on the central functions of warmaking.” 542 U.S. at 534. At the same time, the Court thought it “vital” that it “not give short shrift to the values that this country holds dear or to the privilege that is American citizenship.” Id. at 532; see id. at 558-59 (Scalia, J., dissenting). We follow the Court’s guidance today.
It is so ordered.

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KAREN LECRAFT HENDERSON, Circuit Judge, dissenting: A reader, having just reviewed the majority opinion, might well be thinking it declares a lead-pipe result. Caveat lector. The opinion treats all but silently the judiciary’s dispositively downsized role in the theater of war. See Al Bahlul v. United States, 792 F.3d 1, 28 (D.C. Cir. 2015) (Henderson, J., dissenting) (in the “thicket” of international politics and “waging war,” “our lack of competence is marked,” “our democratic unaccountability glaring” and “the ramifications of our actions unpredictable” (internal quotation, citations and ellipses omitted)), judgment vacated upon grant of reh’g en banc (Sept. 25, 2015). The majority affirms a preliminary injunction (Order) that ventures well beyond the district court’s limited authority. The Order blocks our military from transferring a battlefield captive, petitioner John Doe, to a country that has a sovereign interest in him based on his citizenship there.1 The district court does not find—because there is no evidence—that Doe will be mistreated if transferred. Instead, the point of the Order is to ensure that Doe can challenge his custody in the hope of winning release therefrom on his own terms. The Order is without precedent: in Munaf v. Geren, 553 U.S. 674 (2008), the United States Supreme Court vacated the only comparable injunction. And worse than the Order’s novelty is its effect: it disrupts military operations and sovereign-to-sovereign relations half a world away.
1 This case involves materials that have been sealed to protect sensitive diplomatic interests. Consistent with the “presumption of openness in judicial proceedings,” United States v. Microsoft Corp., 56 F.3d 1448, 1464 (D.C. Cir. 1995) (per curiam) (internal quotation omitted), I rely on the public portion of the briefs and record where possible. Where not possible, I rely on sealed information—mainly in footnotes—and redact it from the public version hereof.

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Affirmance portends a hazardous expansion of the judiciary’s role in matters of war and diplomacy. In defending the Order, Doe relies on Hamdi v. Rumsfeld, 542 U.S. 507 (2004), by which a habeas court reviews the lawfulness of a U.S. citizen’s extended military detention. But Hamdi does not empower a court to enjoin our military from transferring a battlefield captive not facing extended detention. Much less does it authorize injunctive relief where, as here, the receiving country has a facially strong interest in the captive and the Executive Branch has determined in good faith that he is an enemy combatant. Habeas is concerned with Executive Branch “custody,” 28 U.S.C. § 2241(c), not relinquishment of it. Doe erroneously blurs the distinction. He claims that the Executive cannot relinquish custody absent authority to maintain it or, alternatively, absent the “positive legal authority” of an extradition treaty. I discern no such requirement in Hamdi or any other precedent Doe cites.
Further, I believe the Order is at odds with Munaf. There, the Supreme Court vacated a preliminary injunction that blocked our military from transferring to Iraqi custody an American citizen determined by military officers—without Hamdi’s judicial review—to be an enemy combatant. I see no reason for a different result here: the facts are closely analogous and the comity and separation of powers considerations that animated Munaf apply with similar force. If that were not sufficient to align this case with Munaf, our own decision in Kiyemba v. Obama, 561 F.3d 509 (D.C. Cir. 2009) (Kiyemba II), bridges any gap.
I would vacate the Order. It is valid only if Doe shows that all of the preliminary injunction factors support the district court’s intrusion into Executive Branch affairs. In my view, Doe has not carried his burden. Because my colleagues conclude otherwise, I respectfully dissent.

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I. BACKGROUND
The majority opinion recounts many of the relevant facts and much of the procedural history. I include my own recitation to complete the picture and to amplify points that I think distance this case from Hamdi and bring it within Munaf’s ambit. I draw the bulk of the recitation from the government’s factual return. Public Appendix (App.) 155309; see 28 U.S.C. § 2243 (habeas court may require custodian to “make a return certifying the true cause of the detention”); Order, Dkt. No. 41 at 1 (Jan. 12, 2018) (court required return).
Doe claims in passing that “the government’s allegations are riddled with inaccuracies” and “are fundamentally misleading.” Appellee’s Br. 24 n.3. Yet he does not give us his own factual account, except to say that terrorists “kidnapped and imprisoned” him while he was in Syria seeking to “understand” and “report about” the conflict there. Id. Otherwise, he accepts the government’s allegations for the purpose of litigating its authority to detain him. And in his view, the government’s authority to detain him is all but coextensive with its discretion to transfer him. Make no mistake, he is wrong about that. When read together, Hamdi and Munaf make plain that a putative transferee like Doe is not on the same legal footing as a detainee the military has decided to “continue to hold” indefinitely. Hamdi, 542 U.S. at 534 (emphasis altered). Still, given Doe’s view of the purported overlap—and because he reserves his right to challenge the government’s allegations only at “a later stage,” Pet’r’s Resp. to Factual Return, Dkt. No. 59 at 1 (Feb. 9, 2018)—I would hold him to his stance regarding the government’s authority to detain him and its discretion to transfer him.
To me, then, it does not matter that Doe baldly “contends that he is not in fact an [ISIS] combatant.” Maj. Op. 2. His

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pro forma assertion is contrary to all evidence of record. For our purpose today, he was found in a foreign war zone during active hostilities and he admitted training with and working for a terrorist organization. Accordingly, for our purpose today, he is on far different ground from a tourist, tax evader or political dissident. Maj. Op. 4, 18, 20-22.
A. DOE’S BACKGROUND, ISIS MEMBERSHIP AND CAPTURE
Doe is a citizen of Saudi Arabia. He is also a citizen of the United States but has not lived here since 2006 and has not visited since 2014.2
In July 2014, Doe voluntarily traveled to Syria to join the Islamic State of Iraq and the Levant, a terrorist organization better known as ISIS. ISIS has committed
systematic abuses of human rights and violations of international law, including indiscriminate killing and deliberate targeting of civilians, mass executions and extrajudicial killings, persecution of individuals and entire communities on the basis of their identity, kidnapping of civilians, forced displacement of Shia communities and minority groups, killing and maiming of children, rape and other forms
2 Doe was born in the United States. When he was ten years old, he moved to Saudi Arabia and became a citizen there. He returned to the United States for college but moved back to Saudi Arabia two years later. Before taking up with ISIS, Doe owned businesses in Saudi Arabia, got married there and fathered a daughter there. Members of his extended family still live there.

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of sexual violence, along with numerous other atrocities.
Dep’t of State, The Global Coalition to Defeat ISIS (Sept. 10, 2014), perma.cc/W9ZV-Y4DV.3 The United States and 74 other countries have committed to defeating ISIS through military force and other means. Id.; see Dep’t of State, The Global Coalition to Defeat ISIS: Partners (Sept. 10, 2014), perma.cc/SQ57-GQ7R.4
Starting in or about March 2015, Doe attended ISIS training in Syria with fellow recruits. At the training site, he swore allegiance to Abu Hafs al-Maghrebi, who acted on behalf of ISIS’s leader, Abu Bakr al-Baghdadi. ISIS assigned Doe to be a fighter in the Zarqawi Brigade, a military unit that “guard[ed] the front lines” in Syria. App. 195. There, Doe procured fuel for ISIS vehicles, handled funds for ISIS expenses and performed other administrative tasks. He was later assigned to guard the gate of an ISIS oil field and then to monitor personnel who worked on ISIS’s heavy equipment.
Doe worked for ISIS for about two and one-half years “until air strikes and other military offensives against [ISIS] forced him to flee.” App. 162. On or about September 11,
3 ISIS has committed many such acts in Saudi Arabia. See, e.g., Dep’t of State, Country Reports on Terrorism 2016, 219-20 (July 2017) (Country Reports), perma.cc/Q2J9-LPCX.
4 Saudi Arabia has been “a key member and active participant” in this coalition. Country Reports, supra, at 219. It has, for example, joined the United States in launching military strikes against ISIS targets. Dep’t of Defense, U.S., Saudi Arabia Conduct Airstrikes Against ISIL in Syria (Oct. 13, 2014), perma.cc/3YEFRET3.

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2017, Syrian Democratic Forces captured him on an active battlefield as he tried to escape Syria into Turkey. He was carrying thumb drives that contained ISIS personnel spreadsheets as well as “military style handbooks” about techniques for interrogation, handling weapons and building bombs. App. 199-200. Doe told his captors he had been walking for two days. ISIS controlled all of the territory within a two-day walk. Doe’s physical appearance was “typical of an [ISIS] devotee.” App. 245. And, indeed, he expressly identified himself as “daesh,” another name for ISIS. Id. Claiming American citizenship, he said he “wanted to speak to the Americans” and “turn himself in.” Id.
Because Doe claimed American citizenship, the Syrian Democratic Forces transferred him “to U.S. forces stationed in Iraq,” App. 161, within the same theater of combat as his capture, Public Oral Arg. Tr. 18-19, 31 (Apr. 5, 2018). According to the factual return, “[t]he Government had not set out to capture” him but has since “worked diligently to investigate [him] . . . and determine an appropriate disposition of him.” App. 161. During custodial interrogation, Doe admitted that he attended ISIS training and “became an active member of ISIS.” App. 262-63. Based on those admissions and other facts, the Executive Branch has concluded that he is an enemy combatant.
B. DISTRICT COURT PROCEEDINGS
Doe was in United States custody by September 12, 2017. On September 14, the Defense Department confirmed a news report that it had a citizen in custody abroad. Betsy Woodruff & Spencer Ackerman, U.S. Military: American Fighting for ISIS “Surrenders,” DAILY BEAST (Sept. 14, 2017), thebea.st/2x1RfeZ.

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On October 5, 2017—i.e., 23 days after our Armed Forces took custody of Doe—the American Civil Liberties Union Foundation (ACLUF) filed a petition for writ of habeas corpus as his next friend. The petition, which remains pending in district court, claims that Doe’s custody at the hands of the United States military is “[u]nauthorized and [u]nlawful.” App. 19. It asks the court to order the government to “charge [Doe] with a federal criminal offense in an Article III court or release him.” App. 23.
On December 23, 2017, the district court ordered the government to give the ACLUF “immediate and unmonitored access” to Doe. App. 39. In the same order, the court prohibited the government from transferring Doe until the ACLUF informed the court whether Doe wanted the ACLUF “to continue this action on his behalf.” Id. The government complied with the order and the ACLUF spoke with Doe by videoconference. Doe confirmed that he wanted to pursue the habeas case with the ACLUF as his counsel.
On January 5, 2018, Doe sought “interim relief” prohibiting the government from transferring him “until the Court issues a final judgment on his habeas petition.” Pet’r’s Mot. for Continued Interim Relief, Dkt. No. 32 at 2. He argued that such relief was necessary “to prevent the United States from pretermitting this habeas action while the Court considers the lawfulness of his detention.” Id. at 3 n.4. He disclaimed then—and has not alleged since—that he will be mistreated if transferred. Less than two weeks later, the district court prohibited any transfer pending its ruling on Doe’s motion for interim relief. Then, on January 23, the court ordered the government to provide the court and counsel 72 hours’ notice before transferring Doe, “at which time [he] may file an emergency motion contesting his transfer.” App. 50.

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On April 16, 2018—pending an expedited appeal of the notice requirement and after “extensive diplomatic discussions” with the receiving country—the government notified the district court and counsel of its intent to transfer Doe.5 Resp’t’s Notice, Dkt. No. 80-1 at 7 (redacted version).6 On April 18, Doe sought a preliminary injunction blocking the transfer. He renewed his contention that the government “should not be allowed to pretermit [his] habeas action seeking his release from unlawful detention by forcibly transferring him.” Mot. for Prelim. Inj., Dkt. No. 82-1 at 2 (redacted version).
On April 19, 2018, in the Order sub judice, the district court granted Doe’s motion for a preliminary injunction. The Order prohibits the government “from transferring [Doe] from U.S. custody” absent “further order” of the district court. Prelim. Inj., Dkt. No. 88. Explaining its Order, the court recognized that Doe had to show “[1] he is likely to succeed on the merits, [2] he is likely to suffer irreparable harm in the
5 The government intends to transfer Doe to Saudi Arabia, which has “an interest in returning its citizens to Saudi custody.” Sealed Appendix 166. In past negotiations, Saudi Arabia has pursued that interest and the United States has honored it, to the benefit of both countries. Id. (returning Saudi citizens to Saudi Arabia “has been a significant benefit to the United States in combatting terrorism”); see, e.g., Dep’t of Defense, Detainee Transfers Announced (Jan. 5, 2017) (noting transfer of four detainees from Guantanamo Bay to Saudi Arabia), perma.cc/5CRP-74K8.
6 I agree that, because the government satisfied the notice requirement as to the proposed transfer to Saudi Arabia, the validity of the requirement as to that transfer is moot. Maj. Op. 41. And because I would permit the government to effectuate the transfer to Saudi Arabia, I do not address whether the notice requirement is valid as to any other country.

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absence of preliminary relief, [3] the balance of equities tips in his favor, and [4] an injunction is in the public interest.” Mem. Op., Dkt. No. 91-1 at 2 (unsealed Apr. 23, 2018) (quoting Winter v. NRDC, 555 U.S. 7, 20 (2008)) (ellipses omitted). The court concluded that Doe meets all four requirements. In the court’s view:
• Doe is likely to succeed on the merits because the government is required to, and has failed to, “present positive legal authority for his transfer.” Mem. Op. 3 (internal quotation omitted).
• Doe will suffer irreparable harm absent the Order because, upon transfer to another country, he “will lose his constitutional right to contest his detention in a U.S. court.” Id. at 5.
• The equities favor blocking the transfer because “the potential harm to bilateral relations between the United States and its strategic ally does not outweigh [Doe’s] constitutional right to seek habeas relief.” Id. at 6.
• Similarly, the public interest favors blocking the transfer because the government’s military and diplomatic interests do not override “citizens’ rights to contest the lawfulness of their detentions and transfers.” Id.
II. ANALYSIS
A preliminary injunction is a “drastic remedy” to be granted only if the movant makes a “clear showing” that he is entitled to it. Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam) (internal quotation omitted). To my mind, Doe does not come close.

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A. LIKELIHOOD OF SUCCESS
As a threshold matter, Doe misunderstands his burden. He says “the government . . . must show” his transfer will be “lawful.” Appellee’s Br. 14 (emphasis added). He adds that, in deciding whether the government has made that showing, we cannot “accept[] as true” the allegations in the factual return. Id. And he suggests the government must possess foursquare “precedent for the proposition that it may transfer a U.S. citizen to the custody of a foreign sovereign without positive legal authority.” Appellee’s Suppl. Br. 5. Doe’s contentions erroneously treat a preliminary injunction as the baseline. Such relief is “the exception,” not “the rule.” Munaf, 553 U.S. at 690. Because it is “extraordinary”—especially where, as here, it disrupts core functions of a coequal branch of government—“it is never awarded as of right.” Id. at 689-90 (internal quotation omitted). It is Doe who must justify the Order, relying on precedent that can bear its weight.
We also have every reason at this stage to accept the government’s factual allegations. To the extent Doe’s likelihood of success depends on his being a wayward bystander kidnapped in ISIS territory, see Appellee’s Br. 23-24 n.3, it is incumbent on him as the moving party to support that story with evidence and to explain why the government’s contrary account is inaccurate, see 13 JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE § 65.23[2] (3d ed. 2012) (“Submission of affidavits in support of a motion for a preliminary injunction is customary.”). Granted, Doe has reserved the right to challenge the government’s account at “a later stage.” Pet’r’s Resp. to Factual Return 1. But for now he provides no “clear evidence”—indeed, no evidence at all— to rebut the “presumption of regularity” we accord military assertions like the ones contained in the return. Latif v.

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Obama, 677 F.3d 1175, 1178 (D.C. Cir. 2012) (internal quotation omitted).
With Doe’s burden in mind, I turn to the leading cases and their application vel non here.
1. Law of detention and transfer
Relying heavily on Hamdi, Doe argues that the Executive Branch cannot transfer him absent “positive legal authority” or ex ante judicial review of the military’s determination that he is an enemy combatant. The government argues that, under Munaf and Kiyemba II, principles of comity and separation of powers prevent the district court from blocking Doe’s transfer. I agree with the government.
a. Extended detention in Hamdi
Yaser Hamdi, an American citizen, allegedly took up arms with the Taliban before September 11, 2001 and remained with his unit afterward. Hamdi, 542 U.S. at 512-13 (plurality opinion). Later in 2001, a coalition of our allies captured him in an active combat zone in Afghanistan. Id. at 510, 514, 516. They transferred him to the United States military, which in turn sent him to Guantanamo Bay and later to stateside naval brigs. Id. at 510. More than six months after Hamdi’s capture on the battlefield, his father filed a habeas petition as his next friend. Id. at 511. With no apparent intention of transferring him to another country, the government claimed the authority to detain him indefinitely as an enemy combatant. Id. at 510.
Faced with that claim of authority—to detain Hamdi without charge “for the duration of the particular conflict in which [he was] captured,” 542 U.S. at 518—the Supreme Court agreed that a 2001 congressional enactment supplied the

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authority if Hamdi was in fact an enemy combatant, id. at 51624. The Court turned, then, to “the question of what process is constitutionally due to a citizen who disputes his enemycombatant status.” Id. at 524. Balancing the competing interests under Mathews v. Eldridge, 424 U.S. 319 (1976), the Court concluded “that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker,” Hamdi, 542 U.S. at 533; see id. at 527-35.
Importantly, however, the Court emphasized “that initial captures on the battlefield need not receive the process we have discussed” and that such “process is due only when the determination is made to continue to hold those who have been seized.” 542 U.S. at 534 (emphasis altered). Moreover, the Court repeatedly made plain that its due process analysis applies only to detention. See, e.g., id. at 509 (concluding that “citizen held in the United States” must “be given a meaningful opportunity to contest . . . that detention”); id. at 524 (focusing on procedures attendant to “detention of enemy combatants”); id. at 525 (examining relief “available to [an] individual detained within the United States”); id. at 529 (weighing “interest in being free from physical detention by one’s own government”); id. at 530 (considering “interest of the erroneously detained individual” (emphasis omitted)); id. at 535 (referring to “protections that accompany challenges to detentions”); cf. id. at 519 (discussing authority for “detention”); id. at 523 (finding “authority to detain” enemy combatant). The Court’s analysis mentioned the concept of sovereign-to-sovereign transfer only once and only in passing. Id. at 518-19. Even then, it equated transfer with repatriation or release, not continued detention. Id. (noting that “object of capture is to prevent the captured individual from serving the enemy” until he is “exchanged, repatriated or otherwise

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released” (quoting In re Territo, 156 F.2d 142, 145 (9th Cir. 1946))).
b. Transfer in Munaf
Acting under a United Nations resolution, a coalition force of 26 countries took Shawqi Omar and Mohammad Munaf into military custody for their “serious hostile acts” in Iraq. Munaf, 553 U.S. at 699; see id. at 679, 681, 684. I focus here on Omar. He was a citizen of the United States and Jordan. Id. at 681. He was “believed to have provided aid to” al Qaeda. Id. He was held in Iraq “in the immediate physical custody of American soldiers.” Id. at 685 (internal quotation omitted). A tribunal of three American military officers concluded that he was an enemy combatant. Id. at 681. A coalition review board reached the same conclusion. Id. at 682. The coalition later “decided to refer” Omar to Iraqi criminal court “for criminal proceedings.” Id.
Members of Omar’s family filed a habeas petition on his behalf. Omar v. Harvey, 479 F.3d 1, 4 (D.C. Cir. 2007). They asserted that Omar was an “innocent civilian[] . . . unlawfully detained by the United States in violation of the Due Process Clause.” Munaf, 553 U.S. at 692. As here, the United States decided to relinquish custody to another country. Omar, 479 F.3d at 3. As here, the district court “issued a preliminary injunction barring transfer in order to preserve its jurisdiction to entertain the habeas petition.” Id. As here, no criminal charges were pending in the receiving country when the court issued the preliminary injunction. Id. at 8. As here, this Court upheld the preliminary injunction on the theory that it “properly preserve[d]” the district court’s jurisdiction “to test the lawfulness of . . . extrajudicial detention.” Id. at 8, 15.
The Supreme Court vacated this Court’s decision and the preliminary injunction itself. Munaf, 553 U.S. at 705. I

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recognize that the Supreme Court’s holding was narrow: the Court concluded that district courts cannot “exercise their habeas jurisdiction to enjoin our Armed Forces from transferring individuals detained within another sovereign’s territory to that sovereign’s government for criminal prosecution.” Id. at 689. But the Court’s reasoning swept more broadly. Because it weighs heavily against the Order here, I discuss it in detail.
The Court observed that, “at its core,” habeas is directed at “unlawful executive detention,” the “typical remedy” for which is “release.” 553 U.S. at 693. In the Court’s view, the atypical remedy of blocking Omar’s transfer to Iraq was “not appropriate.” Id. The Court emphasized that habeas “is governed by equitable principles,” which means that “prudential concerns, such as comity and the orderly administration of criminal justice, may require a federal court to forgo the exercise of its habeas corpus power.” Id. (internal citation and quotations omitted). And the Court concluded that comity—specifically, respect for Iraq’s sovereign interest in prosecuting crimes committed within Iraq’s borders, even by citizens of the United States—prevented the district court from enjoining Omar’s transfer. Id. at 694 (“Iraq has a sovereign right to prosecute Omar and Munaf for crimes committed on its soil.”); see id. at 705 (invoking Wilson v. Girard, 354 U.S. 524 (1957) (per curiam), for “background principle” that foreign country has “sovereign interest in prosecuting crimes committed within its borders”); id. at 692, 694-99 (same).
In a passage my colleagues downplay, the Court found further support for its conclusion in separation of powers principles. Even in peacetime, the Court noted, “the Constitution allows the Executive to transfer American citizens to foreign authorities for criminal prosecution.” 553 U.S. at 699. The Court remarked on how “strange” it would be “to

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hold that the Executive lacks that same authority where, as here, the detainees were captured by our Armed Forces for engaging in serious hostile acts against an ally in what the Government refers to as ‘an active theater of combat.’” Id. at 699-700. “Such a conclusion,” the Court cautioned, “would implicate . . . concerns about unwarranted judicial intrusion into the Executive’s ability to conduct military operations abroad.” Id. at 700.
Finally, the Court rejected Omar’s contention that “the Government may not transfer a citizen” to another country “without legal authority” in the form of “a treaty or statute.” 553 U.S. at 704 (internal quotations and brackets omitted). Omar had relied on Valentine v. United States ex rel. Neidecker, 299 U.S. 5 (1936), which the Court found “readily distinguishable” because “[i]t involved the extradition of an individual from the United States.” 553 U.S. at 704. The Court acknowledged that, in the context of extradition from the territorial United States, the government cannot “‘seize [a fugitive criminal] and surrender him to a foreign power’” absent authority conferred by “a pertinent constitutional or legislative provision.” Id. (quoting Valentine, 299 U.S. at 9). “But Omar . . . voluntarily traveled to Iraq” and was “captured and already detained” there. Id. Because he was not within the territorial jurisdiction of the United States, Valentine was inapposite. Id.
c. Transfer in Kiymeba II
The district court in the Kiyemba litigation required the government to provide 30 days’ notice to the court and counsel before transferring nine Uighurs from Guantanamo Bay to any “country where they might be tortured or further detained.” Kiyemba II, 561 F.3d at 511. In this Court, the Uighurs defended the district court’s order as essential “to protect[ing]

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the court’s jurisdiction over their underlying claims of unlawful detention.” Id. at 513 n.3. Treating the order as a preliminary injunction, this Court vacated it because the Uighurs did not “make the required showing of a likelihood of success on the merits.” Id. at 516.
Even “assum[ing] arguendo these alien detainees have the same constitutional rights with respect to their proposed transfer as did the U.S. citizens facing transfer in Munaf,” 561 F.3d at 514 n.4, this Court held that “Munaf precludes the district court from barring the transfer of a Guantanamo detainee on the ground that he is likely to be tortured or subject to further prosecution or detention in the recipient country,” id. at 516. The Court accepted the government’s representation that “any prosecution or detention the petitioners might face would be effected ‘by the foreign government pursuant to its own laws and not on behalf of the United States.’” Id. at 515 (quoting declaration of Defense Department official). And the Court reasoned that, under Munaf, “comity and respect for foreign sovereigns . . . bar[] a court from issuing a writ of habeas corpus to shield a detainee from prosecution and detention by another sovereign according to its laws.” Id. (internal quotation omitted).
Taking a further cue from Munaf, the Court added that “separation of powers principles” “preclude the courts from second-guessing” the Executive Branch with respect to transfer. 561 F.3d at 515. The Court concluded that the district court’s notice requirement alone—even without regard to potentially blocking the transfer itself—unduly “interfere[d] with the Executive’s ability to conduct the sensitive diplomatic negotiations required to arrange safe transfers for detainees.” Id.

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2. Application to Doe’s transfer
Under the foregoing framework, Doe has not shown—in fact, cannot show—that he will likely succeed on the merits.
a. As Judge Brown recognized in Omar, “we must first [ask] in what sense” a putative transferee “must be likely to succeed.” 479 F.3d at 18 (Brown, J., dissenting in part). The Supreme Court answered that question in Munaf: we look to whether he will likely succeed on “the merits of [his] habeas petition.” 553 U.S. at 690.
Here, Doe’s habeas petition challenges his detention at the hands of the Executive Branch. App. 11 (alleging that Doe is “being unlawfully detained by the United States military”); App. 13 (stating that Secretary of Defense “is detaining [Doe] under or by color of the authority of the United States”); App. 17 (claiming that detention violates 18 U.S.C. § 4001(a), which applies to “citizen . . . imprisoned or otherwise detained by the United States”); App. 20 (challenging “detention . . . by Respondent”). Doe therefore cannot succeed on the merits of his habeas petition unless he remains “detained by the United States.” App. 17 (quoting section 4001(a)). And he will not remain detained by the United States if the district court has improperly blocked the government from relinquishing custody to Saudi Arabia.
b. To repeat, habeas “at its core” is aimed at “unlawful executive detention,” not at a transfer that ends it. Munaf, 553 U.S. at 693. Accordingly, if it is ever “appropriate,” as a matter of “equitable principles,” to enjoin a captive’s transfer from Executive Branch custody simply to allow him to challenge that soon-to-be-erstwhile custody, such relief ought to be reserved for the most “extreme case” of Executive Branch malfeasance. Id. at 693, 702 (internal quotation omitted); see, e.g., id. at 702 (suggesting relief might be warranted if “the

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Executive has determined that a detainee is likely to be tortured but decides to transfer him anyway”). Doe’s case is by no means extreme in that sense. Indeed, it tracks Munaf in two crucial respects.
First, as in Munaf, the receiving country here has a facially strong—for that matter, all but undisputed—interest in the transfer.7 Granted, the particular interest here is slightly different from that in Munaf. There, the Court relied on Iraq’s “sovereign right to prosecute Omar and Munaf for crimes committed on its soil.” Id. at 694. Here, by contrast, Doe did not (as far as the record discloses) commit crimes within the receiving country’s territory and he has not (to date) been charged with any offense there. But the difference in the two cases is not as stark as Doe would have it: recall that Omar had not been charged with a crime in Iraq before the district court issued the preliminary injunction, or even before this Court issued a decision. Compare Appellee’s Br. 31 (attempting to distinguish Omar’s case on basis that Iraq “was actively prosecuting” him), with Omar, 479 F.3d at 8 (noting that “Omar has not been charged with a crime related to the allegations now lodged against him”). More to the point, focusing on a receiving country’s interest in prosecuting territorial offenses misses the ocean for the boat: in the habeas context, comity is why the prosecutorial interest matters. Munaf, 553 U.S. at 693 (“Habeas corpus is governed by

7 Doe does not dispute that he is a citizen of Saudi Arabia and

has spent much of his life there. See supra note 2. Nor does he

dispute that the Saudi government has an interest in repatriating its

citizens, including radicalized ISIS-affiliated citizens who are

detained abroad and are candidates for rehabilitation. See supra

notes 3-5; see also

Decl. ¶¶ 2-3 (Apr. 16, 2018) (detailing

Saudi interest in repatriation and rehabilitation); Country Reports,

supra, at 222 (same).

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equitable principles,” including “prudential concerns . . . such as comity.” (internal quotations omitted)); see id. at 698-99 (relying on “principles of comity and respect for foreign sovereigns” (quoting Omar, 479 F.3d at 17 (Brown, J., dissenting in part))).
Comity is “[c]ourtesy” towards “the laws and usages” of another nation. III OXFORD ENGLISH DICTIONARY 539 (2d ed. 1989). By definition, it counsels “mutual recognition of legislative, executive, and judicial acts” that go well beyond prosecutorial prerogatives. BLACK’S LAW DICTIONARY 324 (10th ed. 2014). In some cases, then, comity weighs against blocking a captive’s transfer even if the receiving country claims no immediate interest in prosecuting him for a territorial offense.
Perhaps the most obvious case is one like Doe’s, in which the captive is a citizen of the receiving country. Customary international law recognizes a state’s “sovereign[] interest in retaining control over its nationals and residents, wherever they may be.” RESTATEMENT (FOURTH) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 214 cmt. a (2016 draft); see id. § 211 cmt. c (state has jurisdiction over “conduct occurring on the state’s territory or being committed by or against its nationals” (emphasis added)); see also Blackmer v. United States, 284 U.S. 421, 437 n.2 (1932) (under international law, state has “jurisdiction over its subjects travelling or residing abroad, since they remain under its personal supremacy” (internal quotation omitted)).
In any event, Kiyemba II demonstrates that the availability of habeas relief does not depend on whether the putative transferee will be prosecuted by the receiving state. This Court held that “Munaf precludes the district court from barring the transfer of a Guantanamo detainee on the ground that he is

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likely to be tortured or subject to further prosecution or detention in the recipient country.”8 Kiyemba II, 561 F.3d at 516 (emphasis added).
Second, the separation of powers considerations highlighted in Munaf also apply here. When “‘adjudicating issues inevitably entangled in the conduct of our international relations,’” a court is “to proceed ‘with . . . circumspection.’” Munaf, 553 U.S. at 689 (quoting Romero v. Int’l Terminal Operating Co., 358 U.S. 354, 383 (1959)). Far from circumspect, the Order upends the Executive Branch’s decision to relinquish Doe to a country the district court acknowledges is a “strategic ally.” Mem. Op. 6. Much as in Munaf, the Executive’s decision was informed by the ally’s sovereign interest in Doe and by our military’s good-faith determination that he committed “serious hostile acts” in “an active theater of combat” where he was captured and remains detained.9 Munaf, 553 U.S. at 699-700; see generally App. 155-309 (factual return). Thus, the Order is every bit the “judicial intrusion” into “military operations” and “sensitive diplomatic negotiations” that the preliminary injunctions in Munaf and
8 Doe tries to distinguish Kiyemba II on the ground that the Uighurs were non-citizens. It is a fair point but goes only so far; the Court “assume[d] arguendo” the Uighurs had “the same constitutional rights with respect to their proposed transfer as did the U.S. citizens facing transfer in Munaf.” 561 F.3d at 514 n.4.
9 At oral argument, Doe contended that the record contains evidence only that the determination was made, not that it was made in good faith. Because there is no evidence that the determination was made in bad faith, however, I see no reason to question the government’s motives. Cf. Latif, 677 F.3d at 1178-85.

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Kiyemba II were. Munaf, 553 U.S. at 700; Kiyemba II, 561 F.3d at 515.
c. Doe argues that Hamdi justifies the intrusion. He contends that, absent an applicable extradition treaty, Appellee’s Suppl. Br. 10; see infra pp. 23-27, the government cannot transfer him unless it “can lawfully detain [him] as an enemy combatant in the first place,” Appellee’s Br. 23. It follows, in his view, that the district court can appropriately block his transfer in order to review the government’s “unilateral and untested assertion” that he is a detainable enemy combatant. Id. To hold otherwise, he says, would wrongly deprive him of the due process protections to which Hamdi entitles him.
I disagree. For starters, the Supreme Court in Munaf did not read Hamdi the way Doe does. Omar was merely “alleged to have committed hostile or warlike acts in Iraq.” 553 U.S. at 679 (emphasis added); see id. at 694 (he was “alleged to have committed serious crimes in Iraq” (emphasis added)). Based on those alleged hostile acts, military authorities decided that Omar was an enemy combatant. Id. at 681-82. The Court did not hold that a federal judge had to review that determination as a prerequisite to transfer, whether as a matter of “positive legal authority” or due process. To the contrary, the Court concluded that it was “not appropriate” to block Omar’s transfer for the sake of ensuring he could litigate, via habeas, his claim that he was an “innocent civilian[] . . . unlawfully detained by the United States in violation of the Due Process Clause.” Id. at 692-93.
Notably, the Court in Munaf cited Hamdi only once, for the proposition that “[h]abeas is at its core a remedy for unlawful executive detention.” 553 U.S. at 693 (emphasis added). Conversely, as mentioned above, the Court in Hamdi

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invoked the concept of sovereign-to-sovereign transfer only once, equating it with repatriation or release rather than detention. 542 U.S. at 518-19. Reading the cases together, I can only conclude that detention and transfer are not flipsides of the same coin but two entirely different currencies. Hamdi, in short, does not apply to Doe’s transfer. It is a case about detention potentially “for the duration of the relevant hostilities.” Id. at 519. To reiterate, the Court excepted “initial captures on the battlefield” from “the process we have discussed,” emphasizing that such “process is due only when the determination is made to continue to hold those who have been seized.” Id. at 534 (emphasis altered); see id. at 529 (Hamdi’s “liberty interest[]” was “in being free from physical detention by [his] own government”).
Nevertheless, according to Doe, wherever one draws the line between battlefield captive and long-term detainee, he falls on the latter side. In his telling, this case involves an Executive Branch decision to detain him without charge for an extended period, now exceeding six months. Appellee’s Second Suppl. Br. 6 (asserting “government decide[d] not to release him . . . six months ago” when it moved to dismiss his habeas petition). I reject that characterization.
Rewind to September 12, 2017, when our military took custody of Doe. In an active combat zone, it faced the realtime decision of what to do with a battlefield captive who admitted affiliation with ISIS. Should it detain him indefinitely as an enemy combatant? Transport him to the United States and charge him with a crime? Transfer him to a country with a sovereign interest in him? When the ACLUF filed the habeas petition on October 5, “the Government was still engaged in this decisional process” and had yet to choose a course of action. App. 161. No surprise there: the government had had a mere 23 days to investigate Doe. Since

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then, this litigation has left the government in a poor position to consider, negotiate and effectuate Doe’s transfer. App. 153 (according to State Department, litigation contingencies have “hinder[ed] the Department’s ability to engage constructively with” receiving country); see Kiyemba II, 561 F.3d at 515 (“[T]he requirement that the Government provide pre-transfer notice interferes with the Executive’s ability to conduct the sensitive diplomatic negotiations required to arrange safe transfers[.]”).10
The end result is the judicial equivalent of mission creep. After today, a habeas court is authorized to review not only a decision to “continue” Executive Branch custody of a citizen captured abroad on an active battlefield, Hamdi, 542 U.S. at 534, but also—extraordinarily—a decision to discontinue it. Indeed, if the captive’s next friend gets to the courthouse quickly enough, nearly any Executive decision about the captive will be subject to judicial review. Doe makes no showing—much less a clear showing—that Hamdi reserves so little breathing room for the military’s on-the-ground judgment.
d. Doe likewise makes no clear showing that Valentine v. United States ex rel. Neidecker, 299 U.S. 5 (1936), or Wilson v. Girard, 354 U.S. 524 (1957) (per curiam), supports the Order. He claims that Valentine forbids the government to
10 Doe himself argues that the government could not appropriately transfer him once the habeas petition was filed. Public Oral Arg. Tr. 59-61 (Apr. 5, 2018). And at Doe’s urging, the district court has issued a series of orders restricting his transfer. I do not suggest there was anything improper about his litigation choices. But they inevitably delayed the decision to transfer him. In my view, affirmance of the Order mistakenly lays the consequences of Doe’s choices at the Executive Branch’s feet.

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relinquish him to another country absent “positive legal authority” set forth in a statute or extradition treaty. But Valentine involved “fugitive criminal[s]” apprehended in the United States. 299 U.S. at 9, 11 (internal quotation omitted); see id. at 6 (they were United States citizens arrested in New York based on criminal charges in France). In that “very narrow” context, United States ex rel. Neidecker v. Valentine, 81 F.2d 32, 33 (2d Cir. 1936), the Supreme Court required a “statute or treaty confer[ring] the power” to extradite, 299 U.S. at 9.
Doe bears no resemblance to the fugitives in Valentine. He voluntarily traveled abroad to an active war zone. He was captured on a foreign battlefield by foreign military forces. He admitted affiliation with a terrorist organization the United States is combatting militarily. And he was taken at his own request into United States military custody within the same theater of combat. Nothing in Valentine indicates that extradition rules apply to such a person any more than the laws of war apply to a fugitive criminal apprehended in the United States. The Supreme Court in Munaf drew a line between the two types of cases in rejecting Omar’s argument that the Executive Branch could not transfer him to Iraq “without legal authority” in the form of “a treaty or statute.” 553 U.S. at 704 (internal quotations omitted). “Valentine,” the Court observed, was “readily distinguishable” because “[i]t involved the extradition of an individual from the United States.” Id. (emphasis added). Valentine is distinguishable here for the same reason. Moreover, because Doe has the burden of persuasion, I think it significant that—despite numerous armed conflicts since 1936—he cites no case that has ever applied

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Valentine to the wartime transfer of a battlefield captive abroad.11
Doe is similarly mistaken in suggesting that Wilson v. Girard requires “positive legal authority” for his transfer. At issue in Wilson was a bilateral Status of Forces Agreement between the United States and Japan. 354 U.S. at 527-28. The Agreement provided that the American military had jurisdiction over acts committed in Japan by American servicemen in performance of their duties. Id. The Agreement also required the United States to “notify” Japanese authorities “as soon as practicable” if it “decide[d] not to exercise jurisdiction.” Id. at 528. Finally, the Agreement provided that the United States, when making that decision, was to give Japan’s interests “sympathetic consideration.” Id.
Against this backdrop, Girard, an American serviceman in Japan, was alleged to have killed a Japanese national there.
11 The phrase “positive legal authority” does not appear in Valentine, Munaf or any other Supreme Court precedent. Doe draws it from Omar v. McHugh, 646 F.3d 13 (D.C. Cir. 2011), a slim reed on which to base such a requirement. There, on remand from Munaf, this Court held that Omar lacked any “right to judicial review of conditions in Iraq before he is transferred,” id. at 18, but emphasized it was not holding that “the Executive Branch may detain or transfer Americans or individuals in U.S. territory at will, without any judicial review of the positive legal authority for the detention or transfer,” id. at 24. The caveat was as obiter as dictum can be: the Court acknowledged that Munaf had already settled the government’s “authority” to transfer Omar and that, on remand, the Court was “addressing Omar’s separate argument . . . about conditions in the receiving country.” Id. At all events, the Court did not purport to eliminate the sharp distinction between fugitives “in U.S. territory” on the one hand and “wartime military transfers” on the other. Id.

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354 U.S. at 525-26. Because he did so, arguably in performance of his duties, id. at 529, the Agreement “seemed to give [him] a right to be tried by an American military tribunal, not a Japanese court,” Munaf, 553 U.S. at 705 (discussing Wilson). But the Executive Branch “decided not to exercise . . . jurisdiction.” Wilson, 354 U.S. at 529. Per the Agreement, it notified the Japanese government that it intended to transfer Girard to Japanese custody for trial in a Japanese court. Id. at 526, 529. In turn, the Japanese government indicted him. Id. at 526. Girard petitioned for habeas relief and a district court here in the United States enjoined his transfer. Id. Far from requiring affirmative authority for the transfer, the Supreme Court vacated the injunction because the Court discerned “no constitutional or statutory barrier” to the transfer. Id. at 530 (emphasis added). “In the absence of such encroachments,” the Court deferred to the “wisdom” of the political branches. Id. The Court apparently saw nothing of relevance in Valentine, which it nowhere mentioned.
Doe nevertheless reads Wilson to hold that “a treaty satisfied the requirement of positive legal authority for the transfer.” Appellee’s Suppl. Br. 6. He misunderstands the Status of Forces Agreement. The Agreement—which was “[t]he only ‘authority’ at issue in Wilson”—permitted the United States to refuse a transfer and to exercise jurisdiction itself notwithstanding the “background principle” that Japan, absent the Agreement, “had exclusive jurisdiction ‘to punish offenses . . . committed within its borders.’” Munaf, 553 U.S. at 696, 705 (quoting Wilson, 354 U.S. at 529). The Agreement’s mere procedural requirements—to give Japan’s interests “consideration” and to promptly “notify” Japan when the United States “decide[d] not to exercise jurisdiction,” Wilson, 354 U.S. at 528 (emphasis added)—were hardly “authority” for a transfer, let alone the sort of “positive legal authority” that Doe demands here. The Court in Munaf

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recognized as much. It held that Wilson outright “forecloses” the “argument that the Executive lacks the discretion to transfer a citizen absent a treaty or statute.” 553 U.S. at 705. That holding makes sense only if the Munaf Court rejected the notion that the Agreement served as “authority” for the transfer in Wilson.
e. Doe suggests the foregoing analysis cannot possibly be correct because, as he sees it, it gives the Executive Branch license to run roughshod over the rights of American citizens with no judicial check. See, e.g., Appellee’s Br. 52 (it “make[s] a mockery of the Great Writ”); Appellee’s Suppl. Br. 6 (it means citizens “surrender [their] constitutional rights when abroad” (internal quotation omitted)); Appellee’s Second Suppl. Br. 10 (it means “government’s power to dispose of citizens” is not “constrained by law”). None of this is so.
When someone in Executive Branch custody files a habeas petition, the federal courts ensure that the Executive handles him “in accordance with law,” including due process. Hamdi, 542 U.S. at 525 (citing INS v. St. Cyr, 533 U.S. 289, 301 (2001)). But there are limits to a habeas court’s equitable power, even if the petitioner is a citizen. Under Munaf, for example, “prudential concerns . . . may require [the] court to forgo the exercise of its habeas corpus power.” 553 U.S. at 693 (internal quotations omitted). I have explained why, in my view, considerations of comity and separation of powers preclude the Order here. Especially important to me are Doe’s voluntary travel abroad to a war zone during active hostilities; his capture on a foreign battlefield by foreign military forces; his admitted affiliation with a terrorist organization the United States is combatting militarily; the Executive Branch’s resulting good-faith determination that Doe is an enemy combatant; Doe’s continued presence in the same active theater

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of combat as his capture; and the receiving country’s facially compelling interest in his transfer.
If these facts differed, the prudential considerations might differ and the district court might have equitable authority to block a transfer. For instance, Munaf reserves the possibility of judicial intervention if the Executive Branch “determine[s] that a detainee is likely to be tortured but decides to transfer him anyway.” 553 U.S. at 702. Similarly, the government appears to concede “that the courts have a role to play” in ensuring that the Executive Branch does not transfer a battlefield captive to a country that lacks a “legitimate basis” in law to receive him. Public Oral Arg. Tr. 10, 17, 34 (Apr. 5, 2018).
Here, however, we have no record-based reason to assume Executive Branch bad faith or negligence. Rather, as the Supreme Court admonished in Munaf, “we need not assume the political branches are oblivious” to a transferee’s well-being. 553 U.S. at 702 (quoting Omar, 479 F.3d at 20 n.6 (Brown, J., dissenting in part)). Nor should we be distracted by any “farfetched hypothetical[],” Gutierrez v. Waterman Steamship Corp., 373 U.S. 206, 210 (1963), that “veers far from the case before us,” Digital Realty Trust, Inc. v. Somers, 138 S. Ct. 767, 781 (2018); see, e.g., Public Oral Arg. Recording 34:20-34:48 (Apr. 27, 2018) (Doe hypothesizes transfer “to Bolivia or Madagascar” or some other country with no sovereign interest in him); see also, e.g., Maj. Op. 20-22 (majority hypothesizes transfer to Thailand based on political criticism).
The long and short of it is that Doe does not dispositively differ from the petitioners in Munaf. Necessarily, I do not read that opinion the same way my colleagues do. On their view, “the war-related context” of Munaf “did not diminish” the military’s discretion to transfer Omar to Iraqi authorities, at

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least as compared to the military’s discretion to transfer Girard to Japanese authorities during peacetime. Maj. Op. 15. If my colleagues imply that the war context of Munaf made no difference, I disagree: the Supreme Court was explicit that “more [was] at issue” in Munaf than in Wilson, which did not involve a petitioner captured on a battlefield in “‘an active theater of combat’” “during ongoing hostilities.” Munaf, 553 U.S. at 699-700 (accepting government’s characterization to that effect). Although my colleagues do not mention it, those are the very circumstances that gave rise to the Court’s “concerns about unwarranted judicial intrusion into the Executive’s ability to conduct military operations abroad.” Id. at 700. Those same circumstances—and, thus, those same separation of powers concerns—are equally in play here. Doe’s battlefield capture during ongoing hostilities and his admitted affiliation with ISIS align him with the Munaf petitioners and readily distinguish him from the civilians in my colleagues’ counterfactual detours. Maj. Op. 4, 18, 20-22.
B. OTHER FACTORS
Because I believe Doe has not demonstrated a likelihood of success, I do not think it strictly necessary to consider the other preliminary injunction factors. See Kiyemba II, 561 F.3d at 516 (vacating injunction without consideration of other factors because Uighurs did not “make the required showing of a likelihood of success on the merits”); see also, e.g., Greater New Orleans Fair Hous. Action Ctr. v. HUD, 639 F.3d 1078, 1088 (D.C. Cir. 2011) (“When a plaintiff has not shown a likelihood of success on the merits, there is no need to consider the remaining factors.”). Nevertheless, I briefly address the remaining factors because in my view the Order badly misjudges them.

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Irreparable harm. This Court “has set a high standard” for irreparable harm: “the injury must be both certain and great” and “must be actual and not theoretical.” Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006) (internal quotation omitted). On this requirement, too, Doe falls short.
The district court finds that Doe will suffer irreparable harm absent the Order because, once transferred, he “will lose his constitutional right to contest his detention in a U.S. court.” Mem. Op. 5. That is half right: because Doe’s petition challenges his detention by the Executive Branch, he will no longer have a viable habeas case once it divests itself of custody. See Qassim v. Bush, 466 F.3d 1073, 1074-77 (D.C. Cir. 2006) (per curiam) (transfer of Uighurs from Guantanamo Bay to Albania effected release and mooted habeas claims); see also supra pp. 17-18. Contrary to the district court’s view, however, Doe has no cognizable interest in pursuing his petition once he is released from the very custody he challenges. See Munaf, 553 U.S. at 692-93 (it was “not appropriate” to enjoin transfer to ensure petitioners could litigate their claim that “they are innocent civilians”). And because Doe has no cognizable interest in litigating a moot petition, he will suffer no “certain,” “great” and “actual” harm from being denied the opportunity to pursue it. England, 454 F.3d at 297 (internal quotation omitted); see Ralph v. Lucent Techs., Inc., 135 F.3d 166, 170 (1st Cir. 1998) (“A federal court must find a cognizable threat of irreparable harm as an essential prerequisite to the issuance of a preliminary injunction.” (emphasis added)).
Even apart from the mootness problem, Doe’s litigating position precludes him from showing irreparable harm. He says he seeks nothing more than “release simplicit[er]”—that is, “for the United States simply to open the jailhouse doors and

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let him go” in Iraq. Public Oral Arg. Tr. 80 (Apr. 5, 2018). He does not ask to be transported to the United States. He concedes that the Executive Branch is free to notify Iraqi authorities upon his release and that, immediately thereafter, the Iraqi government or other foreign authorities are free to apprehend him.
These are major concessions, and necessary ones. See Munaf, 553 U.S. at 689 (district court could not forbid Executive from “sharing” with Iraqi government “details concerning any decision to release Omar”); id. at 694 (it could not require Executive to “shelter” Omar from prosecution in Iraq); id. at 697 (it could not order Executive to “smuggle” Omar “out of Iraq”). As the government aptly observes, the concessions mean there is “little practical difference . . . between the ‘release’ that [Doe] seeks and the ‘transfer’ that the Government proposes to undertake.” Appellant’s Suppl. Br. 11.
Doe resists this logic because it is “speculat[ive].” Appellee’s Suppl. Br. 11. For all we know, he says, no one will seek to detain him if our military lets him go. This is classic wishful thinking. Because of his admitted affiliation with ISIS—and because Iraq and Saudi Arabia are both members of the coalition against ISIS, see Partners, supra—I believe it is all but certain he will again be held abroad if the United States releases him. 12 And any uncertainty on that
12 I recognize that the country and circumstances of such further detention might differ if the United States were to relinquish Doe to the Saudi government instead of “simply . . . open[ing] the jailhouse doors” and subjecting him to recapture. Public Oral Arg. Tr. 80 (Apr. 5, 2018). But Doe does not allege, let alone show, that the conditions of detention in the latter scenario would be cognizably preferable to the conditions in the former. In any event, judges are ill positioned to compare conditions of detention. Cf. Munaf, 553

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score operates against Doe, not for him. After all, he must prove that, absent the Order, he will suffer “certain,” “great” and “actual” harm. England, 454 F.3d at 297 (internal quotation omitted). He has failed that task.

Balance of equities. The district court finds that “the

potential harm to bilateral relations between the United States

and its strategic ally does not outweigh [Doe’s] constitutional

right to seek habeas relief.” Mem. Op. 6. But as just

discussed, Doe seeks an end to Executive Branch custody; the

Executive Branch will in fact end that custody by relinquishing

him to the Saudi government; and Doe does not demonstrate

that he will suffer cognizable harm if the Executive Branch so

relinquishes him instead of “simply . . . open[ing] the jailhouse

doors” in Iraq. Public Oral Arg. Tr. 80 (Apr. 5, 2018); see

supra note 12. On the other side of the balance, I take the

Executive Branch’s word that blocking the transfer

complicates our diplomatic relations with the receiving

country.

Decl. ¶¶ 8-10 (Apr. 16, 2018); see Latif,

677 F.3d at 1178-85 (applying presumption of regularity in

analogous setting). Common sense and circuit precedent

support its assertion. Kiyemba II, 561 F.3d at 515 (even

requiring “pre-transfer notice interferes with the Executive’s

ability to conduct the sensitive diplomatic negotiations

required to arrange safe transfers”).

In these circumstances, the Executive Branch’s interest in completing the transfer is at least as strong as Doe’s interest in blocking it. See De Arellano v. Weinberger, 788 F.2d 762, 764 (D.C. Cir. 1986) (en banc) (per curiam) (where injunction will “intrude[] into the conduct of foreign and military affairs” and “‘embarrass the accomplishment of important

U.S. at 702 (“The Judiciary is not suited . . . to pass judgment on foreign justice systems[.]”).

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governmental ends, a court of equity acts with caution and only upon clear showing that its intervention is necessary in order to prevent an irreparable injury’” (quoting Hurley v. Kincaid, 285 U.S. 95, 104 n.3 (1932))).

The public interest. Most of what has already been said also goes to the question of where the public interest lies. But some final observations are in order. The district court concluded that a citizen’s right to contest his military transfer outweighs the government’s military and diplomatic priorities. Mem. Op. 6. That conclusion is shortsighted for at least two reasons.

First, judicial intrusions like the Order cost the Executive

Branch valuable diplomatic capital. App. 152-54 (declaration

of State Department official);

Decl. ¶¶ 8-10 (Apr.

16, 2018) (subsequent declaration of same official); see

Kiyemba II, 561 F.3d at 515. Within bounds that have nowise

been exceeded in Doe’s case, Executive Branch officials have

wide discretion to spend that limited capital as they see fit.

Judges ought not lightly cause them to waste it, especially if it

might better be spent on ensuring that the United States, in

future negotiations, obtains custody of persons in whom it has

a compelling sovereign interest.

Second, contrary to Doe’s hyperbole, the Order and its affirmance will not necessarily favor “the errant tourist, embedded journalist, or local aid worker [who seeks] to prove military error.” Appellee’s Br. 24 (quoting Hamdi, 542 U.S. at 534). What if our military had known before taking custody of Doe that it would not be permitted to relinquish him to an ally with a facially strong interest in him unless it first litigated—in distant courts, for months, if not years, on end— the ability to do so? Would our commanders in the field have declined custody, leaving a citizen to the actions of other

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countries or, even worse, to the chaos of the battlefield? It seems to me that today’s result gives the military an incentive to avoid custody when possible, especially if it is not immediately clear in the heat of combat that the captive is a U.S. citizen. And I doubt that the innocent American citizen who finds himself on a foreign battlefield could fare better than in the custody of our military.
* * * * *
To borrow an understatement, the Order is “not appropriate.” Munaf, 553 U.S. at 693. I would vacate it. Accordingly, I respectfully dissent.