Court upholds ruling blocking transfer of alleged ISIS backer to Saudi Arabia
A federal appeals court on Monday upheld a judgeâs order that had blocked the U.S. military from sending to Saudi Arabia an American suspected of fighting for the Islamic State in Syria.
A three-judge panel of the D.C. Circuit split 2-1 in the decision, which endorses a lower-court ruling that the unidentified Saudi-U.S. dual citizen could not be forcibly sent to Saudi Arabia.
Story Continued Below
The panelâs majority and dissenting opinions were not immediately released, pending a review for sensitive information. A formal judgment that the court filed in the case, however, shows that the D.C. Circuit judges split along ideological lines. Judges Sri Srinivasan and Robert Wilkins, both appointees of President Barack Obama, voted to prevent the transfer. Judge Karen Henderson, a George H.W. Bush appointee, dissented.
The prisonerâs lawyers, from the American Civil Liberties Union, argued that it was unconstitutional to transfer the alleged ISIS fighter without some sort of treaty or standing diplomatic agreement.
However, Justice Department lawyers argued that delaying or rejec ting the transfer would damage the ability of U.S. officials to negotiate prisoner transfers in the future.
A department spokeswoman said on Monday that officials there were reviewing the decision.
âThis individualâs alleged activities with ISIL implicate numerous national security, law enforcement, international relations and foreign policy concerns,â said the spokewoman, Kerri Kupec, using an alternative acronym for the terrorist group. âBoth domestic and international law confer on the U.S. military broad discretion over battlefield operations, including the transfer of individuals captured on overseas battlefields. We are reviewing the decision and considering our next steps.â
The ACLU endorsed the courtâs opinion.
âThe appeals courtâs judgment vindicates due process, limits on executive authority and the protection of an Americanâs constitutional rights,â Jonathan Hafetz, the ACLU attorney who argued the issue before the court on A pril 27, said in a statement. âThe president does not get a blank check to dispose of the liberty of U.S. citizens just because international relations or military actions are involved.â
U.S. officials say the detainee was turned over last September by the Syrian Democratic Forces, a faction in the countryâs civil war whose stated goal is a secular and democratic Syria. Initial reports called the prisoner an ISIS fighter, but later court submissions were short on evidence that the individual had actually fought with ISIS. There were indications that heâd explored military tactics and was aligned with ISIS philosophy.
He also claimed to be a journalist, however, and was traveling with press credentials of dubious provenance.
U.S. District Court Judge Tanya Chutkan, who is also an Obama appointee, issued an order in January requiring the U.S. government to provide 72 hoursâ notice before transferring the prisoner out of American custody in Iraq. Justice Department lawyers filed such a notice last month and were promptly confronted by a motion from the ACLU to block the transfer. Chutkan ultimately entered a preliminary injunction blocking the transfer.