Appeals Court Bars U.S. From Transferring American ISIS Suspect

WASHINGTON — The United States cannot forcibly transfer a U.S. citizen being held in Iraq as a suspected Islamic State member to the custody of another country without first proving that he is an enemy combatant, a federal appeals court has ruled.

A major decision on presidential war powers and individual rights, the ruling was handed down by a three-judge panel of the U.S. Court of Appeals for the District of Columbia on Monday and unsealed on Wednesday. It rejected the Trump administration’s argument that it has the authority to transfer the man against his will.

“We cannot accept the government’s argument,” Judge Sri Srinivasan wrote. “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.”

The man, an American-born dual citizen of Saudi Arabia whose name has not been made public, was captured by a Syrian militia in September and turned over to the U.S. military. The Trump administration wants to transfer the man to another country — apparently Saudi Arabia — but he has objected.

However, Srinivasan wrote, if a review were to find that the government is lawfully holding the man as an enemy combatant, that would likely give U.S. officials the legal authority to transfer the man to an ally in the fight against the Islamic State, also known as ISIS.

The man has apparently said he went to Syria to be a journalist and was arrested by the Islamic State, then worked for the group as a condition of being freed from prison. But the government has said it seized Islamic State records that show he registered with the group as a fighter.

The majority ruling upheld a decision last month by Judge Tanya S. Chutkan of the U.S. District Court to block the Trump administration from transferring the man.

Asked whether the Justice Department will appeal again or proceed to a hearing before Chutkan over the merits of the man’s claim that he is not being lawfully detained, Kerri Kupec, a department spokeswoman, said it was still considering its next steps.

The activities the man is accused of with the Islamic State “implicate numerous national security, law enforcement, international relations and foreign policy concerns,” Kupec said. “Both domestic and international law confer on the U.S. military broad discretion over battlefield operations, including the transfer of individuals captured on overseas battlefields.”

Srinivasan was joined by Judge Robert L. Wilkins. Both are appointees of former President Barack Obama. But their ruling was not unanimous. The third judge on the panel, Karen L. Henderson, an appointee of President George H.W. Bush, dissented, arguing that the administration should be able to transfer the battlefield captive without further ado.

The majority’s ruling, she argued, was itself without precedent, and risked disrupting “military operations and sovereign-to-sovereign relations half a world away.”

Jonathan Hafetz, an American Civil Liberties Union lawyer representing the man, invoked the Supreme Court’s landmark 2004 ruling in the case of Yaser Esam Hamdi, a dual U.S.-Saudi citizen who was captured in Afghanistan. In that case, the court ruled that the man could be held indefinitely without trial as a wartime detainee, but only if he got a hearing at which the government presented sufficient evidence to show he was part of the enemy.

“It’s a bedrock requirement of the Constitution that the president does not have the sole and unreviewable power to act as judge and jury over the fate of an American citizen,” Hafetz said. “This ruling affirms the enduring principle that a state of war is not a blank check when it comes of the rights of Americans.”