The Trump administration is trying to ship an American citizen with alleged links to ISIS to Saudi Arabia without a trial — and without any assurances that he won’t simply be thrown into prison once he arrives on Saudi territory.
The proposed move has no recent precedent and highlights President Trump’s willingness to veer outside of established legal practice as part of his hardline strategy for fighting Washington’s long-running war on terror.
The legal drama will come to a head Friday, when a federal appeals court will hear the Trump administration’s case for proceeding with the prisoner transfer. Earlier this month, a federal judge temporarily blocked the administration from sending the unnamed prisoner to Saudi Arabia because the government had “failed to provide” a persuasive argument for moving ahead with it. Now, the White House is trying again — and could make a grim kind of history if it gets its way.
“We are not aware of any case in American history where the government has tried to send away an American citizen,” Brett Kaufman a lawyer for the American Civil Liberties Union, which is defending the detainee, told me.
The Pentagon directed my request for comment to the Department of Justice, which did not respond.
The US government has never revealed the name of the citizen in question, who turned himself in to US-allied fighters in Syria. All court documents identify him as John Doe. The Justice Department has gone to extraordinary lengths to redact all legal filings and continues to argue that making details of the case public could “undermine” US diplomacy.
But the court battle continues, with the man sitting in a jail cell in Iraq while the Trump administration tries to find a way to exile him to Saudi Arabia.
The case has some echoes of President George W. Bush’s so-called “extraordinary rendition” program, in which CIA operatives sent terror suspects to 54 countries, several of which later tortured the prisoners.
But the new case has a key difference: It appears to be the first time in recent history that the government has tried to ship an American citizen overseas against their will and without any trial. If the administration prevails in court, the practice could easily be repeated in the fight against terrorism.
“If the government can hold him for seven and a half months and counting without a preliminary hearing, what’s to say they can’t hold any of us?” Steve Vladeck, a professor specializing in national security law at the University of Texas School of Law, said.
The Trump administration is working hard to keep this case secret
Despite government efforts to keep details of the case secret, redacted court documents describe a seven-month legal battle after the man surrendered to US-allied Syrian Democratic Forces at a checkpoint near the border with Turkey in September of last year.
In addition to having US citizenship, John Doe is also a citizen of Saudi Arabia — where the US government wants to send him, according to news reports and an accidental disclosure in a court document. John Doe says he was in Syria to “report” on ISIS, not help the terrorist organization, according to court filings.
The US government is claiming that it can send the man to an unnamed country, with the accidental disclosure revealing it’s Saudi Arabia, without a trial because that country has a “sovereign interest” in the man.
The problem is that Saudi Arabia’s criminal justice system has a dismal human rights record. It routinely sentences convicted criminals to capital punishments ranging from lashings to beheadings, and many defendants don’t even get lawyers.
That may explain why the US government has made sure to avoid mentioning the words “Saudi Arabia” in public or in any court documents. We know that’s the country in question because someone redacting details of the case for an April 18 court filing messed up and left a single reference to the “Saudi legal” system in place. An updated version of the document filed hours after the original corrected the error, but by that point, it had been seen and shared widely.
That confirmed media reports that the detainee was a dual US-Saudi citizen, and that Washington was trying to send him to Saudi Arabia.
The ACLU says the US government should have to prove that the man committed a crime before it can extradite him to Saudi Arabia.
Doe asked to speak with Americans when he surrendered last year, and Syrian Democratic Forces handed him over to the US military, who took him to a military prison in Iraq. He currently remains there in detention.
From the beginning, government lawyers have insisted that the man was a member of ISIS, and thus no longer has the same legal protections US citizens enjoy. They’ve labeled him an “enemy combatant,” the legal term used by the Bush administration to justify avoiding trials during the early years of the post-9/11 war on terror.
The label basically means that the person in question is fighting for an armed group but isn’t part of a recognized army, and so isn’t protected by international law like the Geneva Convention.
After several reports that the military had a US citizen in custody, the ACLU stepped in last year and began a court battle to push for some kind of trial for the man. They haven’t been successful so far. In January, however, a federal judge ruled that the military had to provide 72 hours’ notice before it shipped the detainee to any other country.
The Pentagon insisted that it shouldn’t have to give the court notice of a transfer, and requested that two unnamed countries be exempt from the 72-hour rule. The judge denied that request, and on April 17, the Justice Department lawyers filed paperwork saying that they planned to extradite the man, with all mention of Saudi Arabia redacted.
John Doe’s case is historic, and not in a good way
Doe is the third American civilian held by the US military since 9/11, according to Vladeck, the national security law expert. The government transferred José Padilla to the civilian justice system and he was sentenced in 2007 to more than 20 years in prison for supporting al-Qaeda. Another American citizen, Yaser Hamdi, agreed to a deal to move to Saudi Arabia in 2004 after spending three years in military custody for allegedly fighting with the Taliban.
If the Trump administration is successful, John Doe would be the first US citizen in modern history sent overseas without a trial.
“A lot of people are familiar with extradition,” Kaufman told me. “The oddity of this case is that no one has charged our client with a crime.”
Vladeck said the administration’s legal argument could set a “dangerous precedent” because the government could easily use the same logic for any US citizen thought to support terrorism. That would mean that the government could rely on extradition as a tactic with terror suspects who have dual citizenship to avoid civilian courts.
Either way, the case says a lot about how the administration wants to wage its fight against ISIS and terrorism more broadly. Trump’s officials are willing to do whatever it takes to dispose of people they believe are terrorists, even at the expense of making it easier for future administrations to do something that once would have been unthinkable.