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Pending federal court decision could have big impact on due process
DANIEL A. COTTER
Law Bulletin columnist
Published: May 8, 2018
In what is shaping up to be a potentially unprecedented matter, the federal government through efforts of the Trump administration is attempting to send a United States citizen with dual citizenship to Saudi Arabia against his will and without a trial.
It is a case that if the government wins before the U.S. Court of Appeals for the D.C. Circuit, which heard oral argument on Friday, may seriously call into question the rule of law that underpins the U.S. Constitution and our justice system.
According to the story that Vox (and other media) has published, the United States citizen in question is referred to as “John Doe” in court proceedings who reportedly turned himself in to United States-allied fighters in Syria. John Doe is purported to have aided and assisted ISIS.
The Department of Justice now seeks to send John Doe to Saudi Arabia to be dealt with over there. According to Brett Kaufman, a lawyer for the ACLU, “We are not aware of any case in American history where the government has tried to send away an American citizen.”
In 2004, the Supreme Court, in a plurality opinion issued by Justice Sandra Day O’Connor in the case Hamdi v. Rumsfeld, dealt with the basic question of the appropriate process due to a United States citizen detained as an enemy combatant. But the defendant there had a right to due process; in this case, the Trump administration is arguing that Doe deserves no trial.
The arguments the D.C. circuit heard on Friday may determine whether Doe is sent to Saudi Arabia as proposed. The U.S. District Court earlier this month blocked the move, writing that the government did not providing persuasive basis for such a move.
The one wrinkle in this matter is that the man in question has dual citizenship both in the United States and in Saudi Arabia. The government’s argument is that Saudi Arabia has a “sovereign interest” in Doe. Doe disclaims any assistance to ISIS.
The case if it turns out that Doe is sent to Saudi Arabia will be the first of its kind and may give the government extremely broad powers to extradite any “enemy combatant” to a less protective jurisdiction in cases of dual citizenship.
Any United States citizen even suspected of supporting terrorism could be extradited without a trial or charging of any crime. The rule of law and due process may be at risk of loss.
The arguments on each side are based on a 1936 Supreme Court case, Valentine v. United States ex. rel. Neidecker, which found that to extradite a citizen, the executive branch must first have such power in a “statute or treaty that confers the power.”
However, in 2008, in the case, Munaf v. Geren, the Supreme Court found limits to Valentine and distinguished it, writing in pertinent part:
“The habeas petitioners rely prominently on Valentine … But Valentine is readily distinguishable. It involved the extradition of an individual from the United States; this is not an extradition case, but one involving the transfer to a sovereign’s authority of an individual captured and already detained in that sovereign’s territory.
“In the extradition context, when a “fugitive criminal” is found within the United States, “‘there is no authority vested in any department of the government to seize [him] and surrender him to a foreign power,’ ” in the absence of a pertinent constitutional or legislative provision.
But Omar and Munaf voluntarily traveled to Iraq and are being held there. They are, therefore, subject to the territorial jurisdiction of that sovereign, not of the United States.
What is unclear in the current case, but that the ACLU on behalf of Doe argues and the reporting seems to support, is that the individual in this case was captured by the Syrian Democratic Forces, who turned him over to the United States military forces when he identified himself as an American citizen.
The facts do not fit nicely within either Munaf or Valentine, but the decision could have a major impact on the question of due process for United States citizens and the war on terror. One question at stake is whether the 2001 Authorization for the Use of Military Force extends to the Islamic State, a non-nation.
The Supreme Court
Last week, the Supreme Court heard final oral arguments, including one addressing the question of Article I Securities and Exchange Commission judges and their status. The solicitor general intervened and tried to have the SCOTUS address the question of the extent to which the president has removal powers.
While it did not mention the special counsel, some see any reception by the SCOTUS to give the current administration potential cover for any removal action they might take (which may become moot if Congress passes the legislation that the Senate Judiciary Committee passed recently.)
The travel ban was also argued during the final week of oral arguments.
The justices have much work to do now that the term is over. To date, that is last Tuesday, SCOTUS had issued opinions in only 31 cases, well behind the 2014 and 2015 terms (but like the 2016 term).
Many have pointed to the back and forth taking place between the liberal and conservative factions. Opinions to be decided include the most anticipated of the year, which as is custom, are likely to be issued in late June before the court recesses for the summer.
Judicial nominees
To date, President Donald J. Trump has nominated one SCOTUS justice, 27 circuit judges (with three more nominations pending) and 75 U.S. District Court judges (with five more pending). Fifteen circuit court judges have been confirmed, including the latest, Kyle Duncan, for the 5th Circuit. Duncan was rated “well qualified” by the American Bar Association.
Duncan received his bachelor’s degree from Louisiana State University, summa cum laude, and earned his J.D. from the Paul M. Hebert School of Law at LSU. He also earned an LLM from Columbia University.
After serving as a law clerk on the 5th Circuit, Duncan has served a variety of public and private roles, including one year at Vinson & Elkins LLP in Houston.
He has been a partner at Schaerr Duncan LLP in Washington, D.C., since 2016, and prior to that, served as general counsel for the Becket Fund for Religious Liberty, also in Washington.
Duncan’s nomination received some pushback because of his publicly stated views on LGBT issues, including regarding same-sex marriage and transgender bathrooms, but last Tuesday, by a vote of 50-47, Duncan was confirmed.
Conclusion
The John Doe case will be one to watch as the D.C. Circuit rules and then perhaps the SCOTUS. In the meantime, Trump continues to build a judicial legacy of appointing young, conservative lawyers to serve on the federal judiciary.
Daniel A. Cotter is a partner at Latimer LeVay Fyock LLC and an adjunct professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. The article contains his opinions and is not to be attributed to anyone else. He can be reached at dcotter@llflegal.com.