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Oh, yay, oh, yay, oh, yay.

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All persons having business before the Honorable, the United States Court of Appeals for the District of Columbia Circuit are admonished to draw near and give their attention, for the Court is now sitting.

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God save the United States and its Honorable Court.

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Be seated, please.

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So I have two announcements before we start.

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The first is Judge Henderson will give full consideration to this matter based on the briefing that's been submitted by the parties and the audio recording of the argument we have today.

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And the second announcement is that we'll have a public session, which we're about to embark upon now, in which there'll be no reference made to the sealed material, which is the identity of the two potential receiving countries, as was discussed in the public briefing, or any discussion that could reveal the identity of those countries.

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And then we'll retire into a closed session in which those references can be made.

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With that, Mr. Burnham.

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Thank you, Your Honor.

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My name is James Burnham.

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I'm here on behalf of the United States.

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And, Your Honor, today I want to thank the panel for bifurcating the argument.

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And as a result, I'll begin with the broad legal issue and try to defer the discussion of the countries to the sealed proceeding.

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Petitioner in this case is a citizen of both the United States and Saudi Arabia who chose to travel to ISIL-held territories spanning Syria and Iraq

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where he was captured on a battlefield by the Syrian Democratic Forces.

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Petitioner told those forces that he is a U.S.

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citizen, and they transferred him to U.S.

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forces, which now seek to potentially transfer Petitioner again.

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Those efforts are hindered, however, by a sweeping injunction that requires 72 hours notice to the district court before relinquishing custody of Petitioner to any country.

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The government has come to this court seeking the narrowest possible relief from that injunction that can still protect its critical interests in conducting foreign affairs and in military operations.

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And how is an injunction that requires notice a sweeping injunction?

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Well, Your Honor, I think it's sweeping because it applies to every country in the world.

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I think the notice requirement, as this Court recognized in QAnon 2, directly interferes with the ability of the United States to engage in diplomatic discussions with other countries, because any sort of agreement that we were able to reach with another country would necessarily be contingent

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on possible post-agreement litigation in the district court, possibly this court and possibly the Supreme Court.

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And so the reason why the notice requirement is an issue is because it interferes with that process.

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And I think as Petitioner himself recognizes, and Kim Betu, I think, holds, there cannot be a notice requirement unless there's authority to enjoin the underlying transfer.

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Did you argue below that

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To the extent that they're seeking notice, it should only be with respect to certain countries and not others.

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And wasn't your position below a sweeping position in that you could, the executive could transform to any country in the world without any judicial review?

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No, Your Honor, our position in the district court was that the executive could transform to a country that has a legitimate interest in obtaining custody.

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And we identified one country in the district court below that we can talk about more in the sealed proceeding.

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But our legal rule was the same legal rule we're talking about here, which is that there needs to be a direct and legitimate interest on the part of the receiving country in order for the transfer to be allowed.

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And so what we asked the district court to do was to, you know, not include, now that it's a little complicated because the petitioner asked for a transfer injunction, not a notice injunction.

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So most of the briefing and discussion was focused on

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an injunction against the ultimate transfer.

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But what we asked the district court to do was exclude any country that has a legitimate interest in petitioner, in particular one country that we can talk about.

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And so I think we fairly presented our narrow position to the district court.

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In this court, we've tried to narrow it even further and concretize it more by limiting it to the two countries that we're going to talk about.

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And I think it's relatively clear that the court cannot enjoin transfer to either of those countries here.

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So can I ask you a question just as a framing question?

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So in OMAR II, we said the following, none of this means that the executive branch may detain or transfer Americans or individuals in U.S.

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territory at will without any judicial review of the positive legal authority for the detention or transfer.

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So let's just take that as a given that that's the general principle under which we're operating today.

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So, is it your submission that the authority to transfer is one that the government has without any judicial review of the legality of the authority to transfer?

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So, I would disagree with your premise, Judge Turner-Walson, because as I read that passage in Omar, there's no commas in the passage, and so what the court, I think, was saying is,

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You cannot detain and transfer Americans or individuals in U.S.

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territory at will.

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So suppose, I think I know where you're going, which is that in U.S.

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territory ratifies both Americans and individuals.

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Yes, Your Honor.

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And I understand your submission to that effect.

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Let's just assume, present purposes, that we disagree with you on that and that they're disjunctive and that Americans, wherever, and others in U.S.

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territory.

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So if that's the understanding, then what's your position as to that?

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Is your position just that that's wrong and it's not correct?

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Or is it that notwithstanding, we're still in compliance with that?

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No, no, I think even if that is what Omar meant, and that is the law, that the United States still has the authority to transfer petitioner.

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And I think it's the same authority, Article II authority, that the executive uses every day on the battlefield to engage in all kinds of battlefield operations, troop movements, military operations, establishing local bases, all of that.

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There are lots of things that happen on the battlefield without any kind of judicial review that the executive just has the authority delegated to the military commanders to engage in.

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You threw in without any judicial review, and I guess my question is if the statement says, and it lifts out in U.S.

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territory because I've assumed it away, and I understand you've gotten your tabby out that that's wrong, but none of this means that the executive branch may detain or transfer Americans without any judicial review of the positive legal authority for the transfer.

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So that's that's what it says and how is the without judicial review consistent with a statement that says that judicial review is required.

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So your honor, I think.

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I think that the position that we would say is that there's no judicial review of the legal authority portion of what is going on.

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But I don't know that our position is that different as a practical matter because what we're saying is that the executive can only send somebody to a country with the legitimate interest.

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And I think that there could be a role for the court to play in deciding kind of what the scope of a legitimate interest is.

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And so I think that's a place where the court might have a role to play.

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I don't think the court has a role to play in assessing whether the legitimate interest as defined exists as a matter of fact in a particular case.

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And so the analogy I would draw there is to the unreviewability of whether somebody is going to be or likely to be tortured in a receiving country.

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where the executive branch in Congress have, you know, the political branches, and so the executive's determination that someone's not likely to be tortured is just not reviewable, at least not in the main.

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I mean, maybe at the extremes, but not in the sort of normal case.

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So the type of question I'd ask then is, in MNOF, the legal question was whether a country that has a particular interest, which is to say an interest in potentially prosecuting someone,

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for potential crimes committed within their territory is the type of interest as to which transfer is definitely allowed and therefore unreviewable.

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You'd say the same thing about transfer based on some other source of authority by the receiving country.

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We won't get into the particulars, but in terms of if it's not transfer for purposes of enabling prosecution for crimes within territory, but it's some other legal basis for the transfer, the validity of that legal basis would be something that's subject to judicial review.

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Right.

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So I think it is certainly possible that the courts have a role to play in assessing whether that legal basis is the sort of legal basis that Munaf was talking about.

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So we've tried to extrapolate from Munaf a legal principle that there's a certain basket of interest that at least that basket of interest is sufficient to engage in a transfer like the one we're talking about here.

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It could be that there's a much broader authority, but we don't think that the court needs to get into that in this case because the countries we've proffered are so close.

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to what was going on in Munoz.

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And the legal question whether that basket of interest is enough is one as to which there would be judicial review.

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So I disagree that that would be something that is subject to judicial review because I think we disagree with your honor about what Omar says.

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But if your Omar disagrees with me about what Omar says, then I think that the judicial review would be limited to what we've just discussed.

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which is whether that interest is a legitimate interest, as we conceive it under Munoz, and then also, of course, under Kyemba, which I think, you know, Kyemba is written in a sort of much more categorical way than the Supreme Court's decision in Munoz.

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And just to underscore that, I mean, there's a lot of quotes like this in this Court's opinion in Kyemba, Kyemba too, I should say.

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quote, Munoz precludes a court from issuing a writ of habeas corpus to prevent a transfer, end quote, because of either continued detention or torture.

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And so I think, you know, what we read from that is if the court cannot enjoin the transfer even to prevent continued detention, it can't enjoin the transfer for no reason at all, just because the petitioner doesn't want to go to whatever country is at stake.

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And then the primary distinction that's been offered for Kyemba 2 by petitioners is that it didn't involve U.S.

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citizens, which is true, except that this court said in footnote 4 that it was assuming, quote, arguendo, these alien detainees have the same constitutional rights with respect to their proposed transfer as did the U.S.

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citizens facing transfer.

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Right.

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But in Kyemba, I thought what was principally at stake is conditions in the receiving country.

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And so I think you're right that the footnote in Kiaba deals assumes that the individuals there have the same rights as U.S.

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citizens would with respect to challenging transfer based on conditions in the receiving country.

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And if the challenge doesn't have to do with conditions in the receiving country, in other words, if the detainee isn't saying,

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Here's why I'd like to transfer, because the conditions of the receiving country are XYZ torture might be one of them.

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There could be other things.

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It doesn't comply with the laws that we hold to be fundamental here.

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Things of that nature, then that's not something that can be reviewed, which might be a different claim.

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than a challenge that's based on the authority to detain here to begin with.

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Right.

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So I just don't think Kyemba is written solely focused on the conditions in the receiving country because I wouldn't conceive of continued detention under that country's laws as a condition in the receiving country.

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I would, I think that's a reason why the person doesn't want to go there.

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And so just, you know, Kyemba says in another place that the district court cannot issue a writ of habeas corpus to shield a detainee from, quote,

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detention at the hands of another sovereign on its soil and under its authority.

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And that's in page 516 of this court's opinion.

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And so I think what the court was saying there is that even if the petitioner is concerned about continued detention, which I don't think is a condition, I think that's more, he's worried about, I think about that as in a different box than whether he's likely to be tortured.

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It's just a rationale for not wanting to go to whatever country we would like to transfer him to.

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Even then, the court cannot interpose itself by a habeas.

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And so I think when you read that in conjunction with Munoz, it's clear that the executive has very broad discretion in this area, at least under the circumstances at issue here.

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And just to take through them really quickly, because I... So if someone who is a journalist for MSNBC or CNN or something like that is detained on the battlefield,

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And the executive makes a determination that they're an enemy combatant.

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And they're going to transfer them forthwith to Siberia or some other remote, unpleasant location.

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And they file writ of habeas corpus in the district court here.

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Court would be without jurisdiction or without the power to review that detention or that transfer.

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Well, Your Honor, you know, I don't think we need to, that's really not our position in this case because that's different from this case in several, I think, significant respects.

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For one thing, I think- I understand it's different.

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No, I- Yes, Your Honor.

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But my point is, is it your argument that that would be unreviewable?

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No, Your Honor.

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My argument today is that I think the court could play a role potentially in defining the scope of what is a legitimate interest as a legal matter.

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And so it's hard for me, you know, I think there'd be a very difficult question about whether there would be a legitimate interest.

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I don't know the citizenship of the journalist, Your Honor's hypothesization.

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I assumed that, but I don't know if he's also a citizen of Russia.

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That could change the calculus.

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But assuming he's not, assuming this is just, you know, we've picked a country out of a hat, I think that would be a much more difficult case.

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But I thought, just to follow up on Judge Wilkins' question, I thought that your threshold position was

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If you disagree with the gloss on Omar that I asked you to accept, and you think that it means that it only deals with people detained in U.S.

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territory even if they're American citizens, then why isn't the answer to Judge Wilkins's question that there is no judicial

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I think these are just slightly different concepts.

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So the point in Omar was what sort of legal authority, in the sense of like, Valentine means it, I think, in the extradition sense, the executive needs.

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And I don't think that applies here.

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I think Omar was not saying that, and I think Munaf takes that off the table.

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What I took Judge Wilkins to be asking me is whether there is a limit on the discretion that we're talking about, and that judicially reviewable limit.

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And I think if you read Munaf, you know,

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I, you know, we don't have a firm position on the outer bounds of this authority, but I certainly think in the hypothetical you've offered, it's a much more difficult case because I think there could be a real question about whether that country has a legitimate interest.

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I would also note that on the sort of our side of the equation, you know, there are a lot of circumstances.

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I'm just, I'm sorry.

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Please.

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There's two different things going on here, one of which is whether there's legal authority.

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Right.

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And the second of which, whether the question of whether the legal authority is judicially reviewable.

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And so it sounds like what you're saying is that.

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based on Judge Wilkins' hypo, there would be a serious question about legal authority.

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But as to judicial reviewability, what's your position?

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So Your Honor, I guess I don't mean to be disagreeable.

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I just don't think about it as a legal authority issue.

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Because I think legal authority is a concept from the extradition context that just doesn't apply here.

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There has to be a treaty with country A in order to extradite somebody to country A. And I don't think that apparatus applies.

[00:15:22] Speaker 01:
So if there's no legal authority requirement, then

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And let's suppose that's the, if we're gonna operate under that premise.

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then what role is there for the courts in my hypothetical?

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So I think, Your Honor, there could nonetheless be limits on the executive's power.

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So even if there's not a legal authority requirement in the sense that Judge Schoen of Austin has suggested, Omar says, and that I think Ballantine does say for extradition, there could be limits to the scope of executive power.

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And so it could be in that circumstance that that is just so, that country is just so far flung.

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There's no basis in international law.

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There's no basis in really any legitimate

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any legitimate basis for that country to be receiving petitioner that the executive just doesn't have discretion to do that.

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Maybe ask a semantic question then.

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Maybe we're fixated on the term legal authority because I understand that that might raise some red flags in your view about Valentine.

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But the way Omar discusses it is it goes on in the same paragraph to explain why

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The concern that had been raised at the outside of the paragraph was satisfied by the proceedings in Munaf.

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And what it says is, in the earlier iteration of this litigation, Omar raised the habeas argument that the government lacks constitutional or statutory authority to transfer him to Iraqi authorities.

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The Supreme Court addressed Omar's argument

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and determine that the executive branch had the affirmative authority to transfer Omar.

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So if we discuss it in terms of affirmative authority rather than legal authority, then are we on the same page?

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Yeah, I think so, Judge Trunibos, and I think what Munaf is saying is that the executive branch just has the authority to do this.

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And I don't think Munaf, because the court, of course, does not do this in Munaf, isn't going through the US Code or our nation's treaties to try to find something more specific than just the general authority that the executive has over the battlefield.

[00:17:07] Speaker 03:
But just if I may, I know I'm over time.

[00:17:09] Speaker 03:
But to answer Judge Wilkins' hypothetical, the other thing I would like to stress is basically all the same predicate circumstances exist in this case as existed in Munaf.

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So we've got, and I think some of these will apply in your hypothetical, but not all of them.

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We have someone who voluntarily traveled to an active theater of combat, was captured on a battlefield, was turned over to the US military during active hostilities, was being held by the military in that theater of combat.

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And then I think this is an important one, pursuant to the military's good faith determination that he's an enemy combatant.

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And then I would also note that there's ongoing hostilities in the region.

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And so I think it would be, I mean, it's hard for me to imagine that if the United States

[00:17:47] Speaker 03:
Believed the person was an innocent CNN journalist who hadn't engaged in acts of terrorism or participated in that sort of thing That they would have that we would ever you know transfer him to Siberia or any other country your honor suggested I also certainly said good faith belief that he's an enemy combatant, but I thought determination But I thought the position you were taking in a reply brief was that the enemy combatancy determination didn't matter

[00:18:14] Speaker 03:
So what I think we, what I meant, what we meant to say in the reply brief for Judge Srinivasan was, what I was trying to say is that there's no judicial review of his status as an enemy combatant.

[00:18:24] Speaker 03:
But that's not to say that, you know, I think it's, it would be entirely reasonable for this court were to agree with our narrow position in this case to say that part of the reason it's doing so is because the executive has made a good faith determination that he's an enemy combatant.

[00:18:37] Speaker 03:
I don't think the court needs to

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try to decide what would happen in a case where, you know, we haven't determined the person's an enemy combatant, where they are just an innocent CNN journalist or something like that.

[00:18:46] Speaker 03:
And because I think that matters.

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And I think that's another reason in which, another aspect in which we are very similar to Munaf.

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Because in Munaf, the executive had determined on its, through its own process, that the petitioners were enemy combatants, but there had been no judicial testing of that.

[00:19:00] Speaker 03:
And there had been no judicial testing of that, even though they were very adamant that they were innocent people.

[00:19:05] Speaker 03:
I mean, the petitioners in Munaf said,

[00:19:07] Speaker 03:
that they were just innocent translators who'd been caught up in, you know, this thing, and there was no basis to prosecute them, and they were Americans.

[00:19:13] Speaker 03:
I mean, many of the same claims that have been raised here.

[00:19:16] Speaker 03:
And I think the Supreme Court was very clear that those petitioners did not have a right to any U.S.

[00:19:21] Speaker 03:
judicial review of their status before they were transferred to the Iraqis.

[00:19:24] Speaker 03:
And I think our case is similar.

[00:19:29] Speaker 02:
That, I think, is a very important question about Munaf.

[00:19:31] Speaker 02:
So I think, as I read Munaf, you're correct that the detainees in Munaf were making the claim that they couldn't lawfully be detained because they were innocent civilians.

[00:19:41] Speaker 02:
And it seems to me the Supreme Court didn't treat with that at all.

[00:19:44] Speaker 02:
And that's the basis of your submission, that in that case, if that's true, then the same should be true here.

[00:19:48] Speaker 02:
And courts shouldn't treat with the validity of the basis for the detention to begin with.

[00:19:54] Speaker 02:
We can still address transfer without dealing with that.

[00:19:56] Speaker 02:
But the other part of Munaf is that it's one way to read Munaf is that the Supreme Court actually did sign off on the legality of the detention, but not based on enemy combatancy.

[00:20:07] Speaker 02:
What the Supreme Court said was that this detention is a detention for purposes of criminal proceedings to take place in Iraq, which is something as to which

[00:20:18] Speaker 02:
a sovereign always has authority.

[00:20:21] Speaker 02:
And so what was going on is this person is being detained in concert with the Iraqi authorities under the traditional

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function of sovereigns, which is to hold people for potential prosecution based on crimes within their territory.

[00:20:37] Speaker 02:
And so it's one way to read them an office to say the court didn't have to treat with whether the enemy combatancy was a valid basis for detention because there was another basis for detention, which is holding over from criminal proceedings.

[00:20:49] Speaker 02:
That's tried and true.

[00:20:50] Speaker 02:
That's fine.

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That exists.

[00:20:52] Speaker 02:
So we get past the detention question and we go to transfer.

[00:20:55] Speaker 03:
Your honor, I don't disagree that that could be a reading of Munaf.

[00:20:58] Speaker 03:
I just don't think it's the reading of Munaf this court adopted in Kyemba 2, where it applied Munaf much more broadly to a much wider range of circumstances than pending criminal proceedings in another country.

[00:21:08] Speaker 03:
And so I think that Kyemba 2 takes a fairly

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broad view of Munoz, and I also think, and we should, we should, we can talk about this more easily in the closed session, I think there are also, another answer to Your Honor's point is that I think there are other interests that are very close to what Your Honor has, to a criminal prosecutorial interest that I think are very analogous and that are present here.

[00:21:30] Speaker 01:
But what about the fact that Doe, or in my hypothetical, the reporter or the person who alleges that they're only acting as a reporter and not as an enemy combatant, is a U.S.

[00:21:44] Speaker 01:
citizen.

[00:21:46] Speaker 01:
Aren't there collateral consequences to there having been a designation that they are an enemy combatant?

[00:21:53] Speaker 01:
So let's suppose we vacate this injunction.

[00:21:59] Speaker 01:
and Doe is transferred wherever.

[00:22:03] Speaker 01:
And then Doe seeks to return to the US.

[00:22:07] Speaker 01:
There's a finding that's been made that he's an enemy combatant, that he wasn't able to challenge.

[00:22:17] Speaker 01:
shouldn't that concern us as far as whether his habeas petition is moot as in kaseem or or what do we do with that that's just life in the big city that's just tough he's got that designation

[00:22:34] Speaker 03:
So your honor, let's say we did transfer Doe.

[00:22:37] Speaker 03:
I think then the government would have to file a petition, sorry, not petition, a motion in the district court to dismiss the case's moot.

[00:22:43] Speaker 03:
And I think that would be the proceeding in which the concerns your honor has suggested would be litigated.

[00:22:48] Speaker 03:
So I think if there were, in fact, collateral consequences, or at least a petitioner thought there were, he could raise those in opposition to dismissal of his habeas petition, and then we could litigate that.

[00:22:58] Speaker 03:
Now I obviously will take, I'm sure we will take the position as we have and as this court, I think,

[00:23:02] Speaker 03:
agree with us in some cases, including Gull, that there are no collateral consequences sufficient to keep the proceeding alive once the person has been released from U.S.

[00:23:10] Speaker 03:
custody.

[00:23:11] Speaker 03:
But I don't think this Court needs to confront that now because we're not asking you to dismiss his petition.

[00:23:15] Speaker 03:
We're just asking the Court to lift the transfer, the notice injunction, as to the two countries

[00:23:21] Speaker 03:
And then we can – if we're able to, we'll – if the other countries decide that they'd like to take him, we'll transfer him.

[00:23:26] Speaker 03:
And then there will be, I'm sure, or at least potentially, litigation in the district court that will come back to this court about whether that transfer has in fact mooted his petition.

[00:23:36] Speaker 03:
So I think, Your Honor – I mean, if those are concerns Your Honor has, I think we can discuss those later in the proceeding.

[00:23:42] Speaker 01:
But aren't those concerns materially different in a case when we're dealing with a U.S.

[00:23:46] Speaker 01:
citizen who has a right to return and then moon off or.

[00:23:55] Speaker 03:
Right so you know I just I don't have a the answer is they certainly they certainly could be but I don't have a firm position on behalf of the United States about that yet because I just don't think we're at that point I think those the issues your honor has raised would go to whether the case becomes moot following a transfer and I think that's something that we but don't they also don't those issues also go to

[00:24:17] Speaker 01:
whether it's appropriate for the court to review his status as an enemy combatant, if that is challenged?

[00:24:28] Speaker 03:
So I guess I would separate the concepts.

[00:24:30] Speaker 03:
So I think there's the question of whether the court should review his possible transfer to the two countries we're talking about, in which case we don't think the court... I mean, we think we've made a facially sufficient showing.

[00:24:39] Speaker 03:
And we have the authority to execute those transfers without judicial oversight.

[00:24:43] Speaker 03:
There's a second question of whether the court has habeas jurisdiction to review the merits of his claim that we have no legal or factual basis to detain him.

[00:24:53] Speaker 03:
The district court has suggested, petitioners suggested and I'm confident that we believe, if he is transferred out of U.S.

[00:24:58] Speaker 03:
custody,

[00:24:59] Speaker 03:
That would end his habeas proceeding because the point of the habeas proceeding is to challenge that custody.

[00:25:04] Speaker 03:
It's entirely possible that he could say there are some other collateral consequences because he's an American that keep it alive, that keep it from being moot, and I just think that's something we can really get done.

[00:25:14] Speaker 01:
So let me make sure I understand your position.

[00:25:17] Speaker 01:
Is it your position that

[00:25:22] Speaker 01:
Whether or not he is an enemy combatant has no legal impact or effect at all on the executive's ability to transfer him.

[00:25:38] Speaker 01:
So if he's not an enemy combatant, the executive can transfer him to any state that has some sort of legitimate sovereign interest.

[00:25:48] Speaker 01:
in him just the same as if he is an enemy combatant, that the difference in status has no impact on the executive's authority.

[00:26:02] Speaker 03:
So, not quite.

[00:26:03] Speaker 03:
The way I think I would think about it, Judge Wilkins, is

[00:26:06] Speaker 03:
You know, in this case, our position is that one of the things this Court can and should or is welcome to rely on and I think could rely on in ruling for us is that we have made a good faith determination, just as in Munaf, that the petitioner is an enemy combatant.

[00:26:19] Speaker 03:
But I think it is very clear from Munaf that the Court, there's no right to judicial review of that status before the transfer is effectuated.

[00:26:26] Speaker 03:
And I think that just makes sense.

[00:26:28] Speaker 03:
I mean, it cannot be that he's entitled to a full round of habeas review before the executive is able to relinquish custody of him to another country.

[00:26:36] Speaker 01:
Is a due process always situational, Will?

[00:26:40] Speaker 01:
I mean, you know, you can have, you know, a due process without having full-blown jury trial and discovery and all of that.

[00:26:53] Speaker 01:
I mean, you know, even in a criminal case, when somebody is first detained, perhaps under Gerstein v. Pew, you know, all the government has to do is present

[00:27:05] Speaker 01:
some sort of sworn affidavit of probable cause that can at least be examined in court.

[00:27:10] Speaker 01:
And then if the detention is going to go longer than that, then maybe it's a preliminary hearing where they have to produce a live witness and there's some cross-examination.

[00:27:18] Speaker 01:
And then if they want to convict them and hold them for a term of years under sentence, then you've got to have a full panoply of rights of a trial.

[00:27:30] Speaker 01:
But you're saying that here it's all or nothing.

[00:27:37] Speaker 01:
Either there's no process or it's a full blown trial which is unworkable.

[00:27:43] Speaker 01:
Why is that the right way to look at due process?

[00:27:46] Speaker 03:
Well, Your Honor, I just think that's how the Supreme Court looked at it in Munaf.

[00:27:49] Speaker 03:
And so that's all, we're just echoing what the Supreme Court said in Munaf, where there were none of these judicial proceedings about the factual accuracy of the executive's determination that those petitioners were enemy combatants.

[00:28:03] Speaker 02:
So I wonder if in Munaf it's because there was no determination of whether

[00:28:08] Speaker 02:
the individuals who in fact were enemy combatants.

[00:28:12] Speaker 02:
But that's because, as you and I were discussing earlier, there was a determination of the legality of the detention.

[00:28:20] Speaker 02:
It was just that the detention followed from a different source of authority, which is the authority to detain pending prosecution.

[00:28:26] Speaker 02:
And if that's, let's just assume that that's the way Munaf worked through that issue.

[00:28:31] Speaker 02:
If that's true, then the Munaf litigation did have a determination of the legality of detention.

[00:28:37] Speaker 02:
It's just that the detention was legal, was authorized for some other reason, for holding over for prosecution, and the Supreme Court validated that, and there was no reason to look at that again once the Supreme Court did.

[00:28:46] Speaker 03:
So I just don't think that's what, that's certainly not how the detainees and Munoz conceived their claims.

[00:28:52] Speaker 03:
I think they conceived their claims as being vis-a-vis U.S.

[00:28:54] Speaker 03:
detention, and the Supreme Court said there was jurisdiction.

[00:28:57] Speaker 03:
to consider whether they had a basis for release vis-a-vis the United States?

[00:29:02] Speaker 03:
You know, I think that's a very tricky question.

[00:29:03] Speaker 03:
Because I think the result of what Your Honor had suggested, I think, would be that the U.S.

[00:29:09] Speaker 03:
could engage in detention as long as the Iraqi criminal proceedings were ongoing.

[00:29:14] Speaker 03:
And I don't know that that's, I don't think that's what the Supreme Court meant.

[00:29:17] Speaker 03:
I think what the Supreme Court was saying was that we could give, we could relinquish these people to the Iraqi criminal justice system.

[00:29:23] Speaker 03:
I don't think it was saying that the basis for detention was not their status as enemy combatants, but was this, you know, kind of a post-Gerstein pre-conviction incident to criminal proceeding source of authority based on Iraqi law.

[00:29:36] Speaker 03:
That's just not how I read the courts.

[00:29:38] Speaker 02:
So here's what Rubenhoff says.

[00:29:40] Speaker 02:
at 697 to 698.

[00:29:41] Speaker 02:
Moreover, because Moammar had been offered being held by the United States Armed Forces at the behest of the Iraqi government, pending their prosecution in Iraqi courts, release of any kind would interfere with the sovereign authority of Iraq to punish offenses against its laws committed within its borders.

[00:29:55] Speaker 02:
And so it seems like the court was looking at the detention by U.S.

[00:30:01] Speaker 02:
forces in concert with Iraq and was validating it because the nature of the detention was in anticipation of Iraq's sovereign authority to prosecute.

[00:30:09] Speaker 03:
So I don't, I mean, I obviously don't dispute that that's in the court's opinion and that they talked about that.

[00:30:14] Speaker 03:
I just don't think that, I don't think the court was sort of, was moving the basis for detention from enemy combatant authority to anticipatory of legal proceedings, especially because I think in that case, the US was trying to relinquish custody of these individuals to the Iraqi criminal justice system right then.

[00:30:31] Speaker 03:
I think it would have been a pretty different case, it would have been a different case and maybe had a different- Well, I'm not understanding the significance of that point.

[00:30:36] Speaker 02:
Why does it matter?

[00:30:37] Speaker 03:
Well, because the question before the court was whether the United States could relinquish custody of them to the Iraqi justice system at that time.

[00:30:45] Speaker 03:
And so I just don't know what the court would have said, and I think it would be a different case if the US had come in and said, no, we want to keep holding them in US custody for as long as it takes for the Iraqi criminal justice system to reach the point of final conviction or final acquittal.

[00:30:59] Speaker 03:
And I just don't think that was what the court had in mind and what the parties were talking about in that case.

[00:31:04] Speaker 02:
So this gets to one other issue that I wanted to explore, which is the relationship between the authority to transfer and the authority to detain.

[00:31:13] Speaker 02:
Sure.

[00:31:13] Speaker 02:
So one way to look at the world, and I think the way your colleagues on the other side look at the world, is the authority to transfer presupposes an authority to detain, especially if it's transferred to a third country.

[00:31:24] Speaker 02:
Because in order to transfer someone to a third country, you have to detain them and then move them.

[00:31:29] Speaker 02:
And as I understand the way you look at the world, it's a little bit different, which is that you don't have to think about authority to detain at all if you're talking about authority to transfer.

[00:31:38] Speaker 02:
They're two kind of disaggregated, separate things.

[00:31:42] Speaker 02:
And all we're looking at is authority to transfer.

[00:31:44] Speaker 02:
And my question to you is why?

[00:31:47] Speaker 02:
Because there is some logical force to the intuition that in order to be able to transfer someone to a different country, there needs to be an authority.

[00:31:56] Speaker 02:
In order for the US to have the authority to transfer someone to a different country,

[00:31:59] Speaker 02:
there needs to be an authority to detain that person to begin with in order to facilitate the transfer.

[00:32:04] Speaker 03:
Right, so I think it just looks at it from the wrong side of the equation because when you transfer somebody to a foreign country, you are by definition relinquishing them from U.S.

[00:32:13] Speaker 03:
custody.

[00:32:13] Speaker 03:
So it's sort of odd to say the U.S.

[00:32:15] Speaker 03:
needs authority to detain in order to

[00:32:17] Speaker 03:
cease its detention and relinquish custody of someone to a foreign country.

[00:32:21] Speaker 03:
And the way I would think about it, and I think we talked about this at some length in our briefs, is when petitioner travels to a transnational battlefield that spans Syria and Iraq, and let's just say hypothetically the Iraqi government wanted to take custody of that petitioner while he's there, there'd be nothing in U.S.

[00:32:36] Speaker 03:
law to prevent that.

[00:32:38] Speaker 03:
His only remedies in the United States would be diplomatic remedies.

[00:32:40] Speaker 03:
And that's because when you leave the United States, you surrender the protections you enjoy within the United States.

[00:32:46] Speaker 03:
So somebody who is captured and detained abroad and then released abroad is inherently, immediately vulnerable to apprehension by a foreign government, whether it's the country he's in or some other country in concert with the country he's in.

[00:33:00] Speaker 02:
So why wouldn't that equally be true of somebody?

[00:33:02] Speaker 02:
Let's take the homie category of wayward tourists.

[00:33:08] Speaker 02:
or embedded journalists, the categories that Hamdi describes as the people who would be beyond legal authority to detain, and therefore there had to be some review of it.

[00:33:16] Speaker 02:
That's the way the Hamdi plurality at least conceives it.

[00:33:19] Speaker 02:
So if you had somebody whose dual US foreign citizen travels abroad, and it sounds like your submission is that if they come into US hands abroad, and let's just say that they're just a wayward tourist, that still they would have no

[00:33:38] Speaker 02:
claim as against transfer, because transfer is the same thing as release, and they'd be seeking release, and so then they couldn't object to the transfer.

[00:33:48] Speaker 03:
Right.

[00:33:49] Speaker 03:
So I don't think we're... Is that true?

[00:33:50] Speaker 03:
No, no.

[00:33:50] Speaker 03:
We're not going that far at all, Your Honor, because I think what we're saying is, in the context of Munaf, and there's a lot of things that were going on in Munaf that I think are all

[00:34:00] Speaker 03:
basically the same here.

[00:34:02] Speaker 03:
In that circumstance, you know, this authority, you know, I don't think there needs to be a specific sort of legal authority, but this sort of authority exists.

[00:34:09] Speaker 03:
And I think that's what the Supreme Court was talking about.

[00:34:11] Speaker 02:
Which authority?

[00:34:11] Speaker 02:
The authority?

[00:34:12] Speaker 03:
The authority to transfer.

[00:34:13] Speaker 03:
So we're not making the assertion.

[00:34:14] Speaker 02:
I'm also talking about the

[00:34:15] Speaker 03:
No, no, I understand your honor and we're not taking the position that that authority is plenary because releases tantamount transfer equals release Therefore transfer is released therefore we can do this whenever we want wherever we want to whoever we want That is not that's not what we're saying here And I think there are going to there could be hard questions though at the margin of this authority for the for those reasons but we're cabinet why I guess I'm trying to understand why isn't it that what you're saying because I

[00:34:38] Speaker 02:
If we're just hypothesizing a wayward tourist, I can't remember the exact words using the Humvee, it was something like wayward tourist.

[00:34:44] Speaker 02:
We'll stipulate.

[00:34:45] Speaker 02:
Yeah.

[00:34:46] Speaker 02:
If it's a wayward tourist and they get picked up on what everybody conceives of as a zone of hostilities, and the U.S.

[00:34:54] Speaker 02:
wants to transfer them, and they're dual citizen, so they fit a lot of the boxes that we're talking about.

[00:35:00] Speaker 02:
then it sounds like your argument is that because what they're complaining about is transfer and because release is tantamount to transfer, there's no habeas review of the transfer.

[00:35:11] Speaker 02:
Why isn't that what you're saying?

[00:35:13] Speaker 03:
Because I think what we're saying here is that What we're saying here is that there there could be habeas review of whether the country that was transferring somebody to has a legitimate interest At least whether the the legal, you know deciding what what constitutes a legitimate interest and I also think that there's a stipulate to that Let's just let's just suppose that it's a case in which

[00:35:34] Speaker 02:
the country has what the executive used to be a legitimate interest in the person.

[00:35:39] Speaker 03:
Right.

[00:35:39] Speaker 03:
Then I think there could also be a role for the courts in assessing whether the preconditions to this authority exist.

[00:35:44] Speaker 03:
And I think we've tried to generalize from Munoz a pretty narrow rule in which that authority exists.

[00:35:51] Speaker 03:
And one of the factors that I don't think is present in your honor's hypothetical that I think the court could rely on in ruling for us here is that we've made a good faith determination here that this person's an enemy combatant.

[00:36:00] Speaker 03:
And that changes this from the hapless aid worker or whatever that we've come into custody of and for some reason want to transfer.

[00:36:08] Speaker 02:
I also would just submit that, you know... So you've made a good faith, a lot turns on the language then, because I think we've boiled it down to a good faith determination of any combatancy.

[00:36:19] Speaker 02:
If that's the question, and suppose that the government had a legal view, and I know the government wouldn't do this, but suppose that the government had a legal view that an embedded journalist who's found in a zone of hostilities is subject to detention under traditional war powers, and so is effectively an enemy combatant.

[00:36:39] Speaker 02:
then that's something that you say could be reviewed, even if the person was seeking... I'm sorry, say that again, Your Honor, I missed it.

[00:36:45] Speaker 02:
Suppose that they're an embedded journalist.

[00:36:46] Speaker 02:
I got all that, I just got the missed last one.

[00:36:47] Speaker 02:
Yeah, that's something that you say could be reviewed, even if what they're challenging... I certainly don't think you have to take that off the table in this case.

[00:36:55] Speaker 03:
I think we could have a discussion in that circumstance about what the scope of judicial review would be, but we certainly are not asserting... I don't think the authority we're asserting in this case requires going nearly

[00:37:05] Speaker 02:
I guess my point is simply this, that if we were to reach the conclusion that that is something that could be reviewed, and I'd take your point that that's a different case, we wouldn't have to reach it in this case, but we're trying to draw lines and figure out what the implications of a ruling would be, if we're trying to carve that out and say that that's something that would be reviewed, then it seems like what's happening is that there, the authority to detain and authority to transfer questions become the same.

[00:37:28] Speaker 02:
because the authority to transfer is predicated on an authority to detain, and the authority to detain is predicated on whether it's true that there's an authority to detain an embedded journalist.

[00:37:37] Speaker 03:
Right, so I think I would disagree with Your Honor in this respect, because in Munoz itself, you know, the petitioners in Munoz could have been embedded journalists, right?

[00:37:44] Speaker 03:
I mean, they said they were translators, not journalists, but they said they were completely innocent people.

[00:37:48] Speaker 03:
And the Supreme Court said they had no right to judicial review of that determination.

[00:37:52] Speaker 03:
And then Kyemba, too, I think, applied that in a broad circumstance.

[00:37:55] Speaker 03:
And so I guess when I was answering your honest question, what I was thinking is, in the general case, this is not going to be reviewable.

[00:38:02] Speaker 03:
But it's possible that at the fringe, at the margin, there could be a role for the courts to play, where the executive branch's determination is just facially absurd.

[00:38:10] Speaker 02:
But I thought what I think in Munaf, a reading of Munaf with which maybe you disagree, is that

[00:38:15] Speaker 02:
Everything that mattered to the Supreme Court was undisputed, which is to say that

[00:38:20] Speaker 02:
Even the detainees in Munaf, Omar and Munaf didn't dispute that the reason Iraq wanted to hold them is because they wanted to prosecute them.

[00:38:29] Speaker 02:
And from the Supreme Court's perspective, that's all you need to know.

[00:38:32] Speaker 02:
Once we know that a foreign sovereign wants to prosecute somebody for alleged crimes committed on their soil, the authority to detain and therefore to transfer exists.

[00:38:41] Speaker 03:
No, that's right.

[00:38:42] Speaker 03:
But I think your hypothetical presupposed that we had determined

[00:38:46] Speaker 03:
that the person was an innocent journalist.

[00:38:48] Speaker 03:
And that's not something that Munaf confronted at all.

[00:38:51] Speaker 03:
In Munaf, the government had obviously thought that the petitioners were what the Iraqi government believed they were, or at least that there was sufficient evidence to try them criminally.

[00:38:59] Speaker 03:
And so I think it's just a different case when you're talking about one where the government itself believes

[00:39:04] Speaker 03:
It has determined that the person is an innocent journalist.

[00:39:07] Speaker 03:
That's just a very different circumstance than what we're talking about here, that I think certainly distinguishes it from Munoz and really raises a lot of difficult questions that aren't presented in this case.

[00:39:17] Speaker 03:
Because I think all the predicates I mentioned, I forget an answer to whose question it was in response to, but are undisputed here.

[00:39:24] Speaker 02:
So one thing is not, which is that the way you drew the line, I think, is a determination of enemy combatancy.

[00:39:31] Speaker 02:
That was one of our factors yesterday.

[00:39:33] Speaker 02:
Yeah, so when we spun out what we were talking about a minute ago, we arrived at good faith determination of enemy combatancy.

[00:39:40] Speaker 02:
And let's just assume that there is that here.

[00:39:44] Speaker 02:
The claim that's being made on the other side is it's still an incorrect determination of enemy combatancy, not necessarily that's being made.

[00:39:52] Speaker 02:
that actually this person's not an enemy combatant, they were a journalist, put that to one side and assume the government's right about that, either that the government's correct on the facts or that that's unreviewable.

[00:40:00] Speaker 02:
There's the legal proposition that's being put forward, which is that in order to be a correct determination of enemy combatancy for purposes of detention, you have to conclude that the AUMF applies in this context.

[00:40:12] Speaker 02:
But that's a legal question, that's an issue.

[00:40:15] Speaker 02:
That legal question could be seen as not meaningfully distinct from the legal question of whether there's an authority to detain someone because they're on the basis of that they're an embedded journalist.

[00:40:28] Speaker 03:
Right.

[00:40:29] Speaker 03:
So at the beginning, I disagree that I don't think the court needs to get into all of this.

[00:40:33] Speaker 03:
But I think if the court, even if the court thinks that this

[00:40:37] Speaker 03:
is relevant on some level.

[00:40:38] Speaker 03:
I think then there's a question about the authority to do things in the theater of battlefield operations and whether they're judicial reviewable as compared to the authority to detain someone until the end of act of hostilities under Hamdi.

[00:40:51] Speaker 03:
And I think the latter

[00:40:53] Speaker 03:
The latter type of authority is fairly specific and fairly specific to habeas corpus.

[00:40:58] Speaker 03:
And I think there's certainly a difference between that type of authority and the authority used to do all the other things that are happening in Iraq and Syria right now.

[00:41:06] Speaker 03:
So we certainly don't think the court needs to try to...

[00:41:08] Speaker 03:
figure out, basically put the cart before the horse, and figure out whether we would win the habeas proceeding on the merits, either as to the legal basis or the factual basis, in order to figure out whether we're allowed to relinquish custody of Petitioner now to one of the two countries that we'll talk about soon.

[00:41:25] Speaker 02:
Can I just get your clarification on one line of argument that you've discussed a few times, which is, if one were to read, I'm not saying this is the way I read it, but if one were to read Munaf as validating detention on the idea that

[00:41:39] Speaker 02:
based on the undisputed facts there that detention was for the purpose of potential Iraqi prosecution, and that's a valid basis of detention, and therefore we're signing – we, the Supreme Court, are signing off on authority to detain in that circumstance.

[00:41:52] Speaker 02:
And we just get the authority to transfer based on the predicate that there is an authority to detain.

[00:41:56] Speaker 02:
Then you have a further argument that even if that's how one were to read Munaf, that

[00:42:02] Speaker 02:
Kicks in and does something more and why I just want to make sure I understand that argument.

[00:42:05] Speaker 03:
Well, I think Chiemba just applies moon off to a very different circumstance, which is a detainee who who like petitioners being held in U.S.

[00:42:13] Speaker 03:
custody.

[00:42:14] Speaker 03:
And in fact, in Chiemba, the U.S.

[00:42:15] Speaker 03:
didn't even believe their enemy combatants anymore.

[00:42:18] Speaker 03:
And that was the whole point.

[00:42:18] Speaker 03:
That's why we were trying to transfer them.

[00:42:20] Speaker 03:
who doesn't want to go to the recipient country.

[00:42:22] Speaker 03:
And this court, I think, was very clear that there's no basis in habeas corpus to interpose the courts in that transfer because the detainee is worried that he's going to be detained further in the receiving country.

[00:42:34] Speaker 02:
So that's true.

[00:42:35] Speaker 02:
So let's just say, because what Kiamba has is a structure where it says there's two bases of potential objections here.

[00:42:40] Speaker 02:
One is fear of torture.

[00:42:42] Speaker 02:
recipient country and one is prosecution or continued detention in the recipient country.

[00:42:47] Speaker 02:
They both have to do with objections about what's going to happen in the recipient country.

[00:42:51] Speaker 02:
They didn't have to do with detention, continued detention at the hands of U.S.

[00:42:55] Speaker 02:
authorities here.

[00:42:57] Speaker 03:
That was just kind of put off the table because the government conceded it didn't have authority to detain.

[00:43:01] Speaker 03:
And so I think that answers your honor's question, right?

[00:43:04] Speaker 03:
So there was no authority to engage in continued detention in Canbatou.

[00:43:08] Speaker 03:
That was the point.

[00:43:09] Speaker 03:
And yet the court found Munoz to be controlling

[00:43:12] Speaker 03:
on these questions about the scope of the authority to transfer.

[00:43:16] Speaker 02:
True.

[00:43:16] Speaker 02:
So if Kyemba stood for the proposition that therefore there's never any review of the basis for detention because it was conceded that there wasn't a basis for continued detention, that would be one thing and that would be very much to your benefit.

[00:43:29] Speaker 02:
But I get one way to look at Kyemba is to say that what it was about was a situation in which nobody was asking for release.

[00:43:36] Speaker 02:
because that just wasn't available because these individuals didn't have any authority to be released either where they were being detained into Cuba or an authority to be released into the U.S.

[00:43:45] Speaker 02:
because they were aliens.

[00:43:47] Speaker 02:
So release just was off the table.

[00:43:48] Speaker 02:
All we're talking about is a practical accommodation of what to do with individuals who can't be released.

[00:43:55] Speaker 02:
They have to be transferred.

[00:43:56] Speaker 02:
And we're just talking about where they can be transferred.

[00:43:59] Speaker 02:
Whereas one could say that in a case like this one, the question of release actually is on the table.

[00:44:04] Speaker 02:
because they are, the individual is a United States citizen.

[00:44:08] Speaker 02:
So the possibility of release, in fact, exists.

[00:44:12] Speaker 03:
I guess I would just, I'm sorry?

[00:44:13] Speaker 02:
Does that make sense?

[00:44:14] Speaker 02:
Is that potential basis for a distinction?

[00:44:16] Speaker 02:
And if it doesn't, why not?

[00:44:18] Speaker 03:
So I just, I don't think, because I guess I would say that the court's opinion in Quiemba II doesn't, the court's opinion in Quiemba II is not limited in the way that Your Honor has suggested.

[00:44:28] Speaker 03:
Even though I think Your Honor has proffered a factual distinction,

[00:44:31] Speaker 03:
of Kiev, but the guys, the petitioners in Kiev I think did actually want to come to the United States.

[00:44:36] Speaker 03:
Now obviously there's a distinction because they were not US citizens, but of course the court assumed that they had all the same rights as US citizens in footnote four as the US citizens in Muna.

[00:44:44] Speaker 03:
So I think when the court says that, I mean I think it's sort of taking this distinction off the table.

[00:44:50] Speaker 02:
Well they had the same rights vis-a-vis objecting to a transfer to a third country based on the conditions of that third country.

[00:44:56] Speaker 02:
They didn't.

[00:44:56] Speaker 02:
I don't know that the footnote has to be read to say

[00:44:58] Speaker 02:
they had the same rights vis-a-vis release because everybody agreed in Quiemba that release, at least release into the U.S.

[00:45:05] Speaker 03:
was not even... No, I know, but I thought I took your honor to be linking the two and saying that the ability of release changes the scope of the authority to transfer.

[00:45:15] Speaker 03:
And so I guess I'm just saying that if that were what the court had meant in Quiemba 2, I think it would have just been written differently and wouldn't have

[00:45:23] Speaker 03:
Equated the petitioners in front of it with you It wouldn't have said it was assuming they had the same rights as US citizens because if they were in fact had the same rights as US citizens And it was in fact significant that that would then mean they could be released in the United States And that would have changed the whole analysis under the the line of reasoning.

[00:45:38] Speaker 03:
I think your honor has suggested So if there's no more questions, I'll be back soon and we'll give you some time for rebuttal to Okay.

[00:45:46] Speaker 03:
Thank you

[00:46:14] Speaker 04:
Good morning, Your Honors.

[00:46:15] Speaker 04:
Please, the Court.

[00:46:17] Speaker 04:
It's a little difficult to respond because the government has shifted positions multiple times.

[00:46:24] Speaker 04:
They've shifted from what they told Judge Chutkin.

[00:46:27] Speaker 04:
Initially, they shifted from what they told this Court from their initial brief and their reply brief, and now they've shifted their argument.

[00:46:33] Speaker 04:
But what they presented to Judge Chutkin was this, a blank check to render, forcibly render, an American citizen to any country

[00:46:43] Speaker 04:
the executive deemed had a legitimate interest in him without positive legal authority and without any judicial review whatsoever.

[00:46:53] Speaker 04:
In fact, they told Judge Chuckin, and this is at page 18 of the transcript from January 18th, it's not in the appendix, it's in the docket, it was none for business, that it was not their burden to tell

[00:47:12] Speaker 02:
Judge Chuck and where they would be sending him now In light of this I understand this argument because it seems like it's just within the ken of parties in litigation all the time to narrow the scope of issues and that's an understanding of what the government is doing is that they're saying you know, whatever

[00:47:35] Speaker 02:
was the case below and however this is teed up, we're seeking to narrow the scope of the issues.

[00:47:40] Speaker 02:
And one way in which we're seeking to narrow the scope of the issues is basically, and it operates in your favor because it's essentially a concession.

[00:47:46] Speaker 02:
That we're not we're not disputing the validity of the order that we're challenging with respect to any countries other than the two that remain on the table.

[00:47:55] Speaker 02:
And that just seems like that's within the kind of what parties do all the time to narrow.

[00:48:00] Speaker 04:
Yeah, I don't belabor the point.

[00:48:01] Speaker 04:
I just do two quick brief points on that, one of which is one of the country.

[00:48:05] Speaker 04:
Neither of the countries were

[00:48:06] Speaker 04:
of them was provided to us in the district court, and only one of them was provided to Judge Chukin.

[00:48:11] Speaker 04:
And second, just in terms of the Judge Chukin's exercise of her powers, it was in light of this

[00:48:19] Speaker 04:
sweeping position that she entered an exceedingly narrow order, requiring the government to provide merely 72 hours notice, literally the minimum notice to provide petitioner with an opportunity to challenge the basis for his transfer and for the court to review that transfer.

[00:48:39] Speaker 04:
And this notice requirement serves, preserves judicial review for two critical functions.

[00:48:45] Speaker 04:
One is which to determine whether there's positive legal authority to transfer an American citizen, and then secondarily to ensure that it's not an extreme case to preserve review in the case of an extreme case in which the executive is transferring a citizen regardless of the risk of torture, both of which require prior judicial review.

[00:49:09] Speaker 04:
On the positive legal authority point, this is a critical point as Your Honor noted.

[00:49:14] Speaker 01:
How is the second issue even before really in this case?

[00:49:21] Speaker 01:
The torture issue?

[00:49:24] Speaker 01:
Your Honor, we, I mean, given, given Munoz, Kyemba and the representations made by the government about their policies in this case, how is that issue even really present and on the tables are something that can be reviewed?

[00:49:43] Speaker 04:
I'll answer briefly, and then I think it might be better to defer that to the closed session.

[00:49:48] Speaker 04:
But at the point, it's not that the focus of this case, the main focus is authority.

[00:49:54] Speaker 04:
But the government says that we didn't raise anything about the risk of tortures because we didn't know to what country the petitioner might be sent.

[00:50:03] Speaker 04:
That wasn't identified to us.

[00:50:07] Speaker 04:
It preserved, it did, in Munaf and in Canba too, preserved the exception for the extreme case.

[00:50:12] Speaker 04:
And in Munaf there was evidence specifically that the Solicitor General pointed to and that the court noted about the specific facilities that they were going to be transferred to and whose authority they were under.

[00:50:23] Speaker 04:
So, but I want to, if I may return to positive legal authority because I think that is critical.

[00:50:28] Speaker 04:
As this court recognized in Omar II and as the Supreme Court has recognized multiple times, there has to be positive legal authority based on the due process clause and the separation of powers to transfer an American citizen.

[00:50:45] Speaker 04:
That positive legal authority can take different forms.

[00:50:50] Speaker 04:
It can take the form of an extradition treaty if someone's being transferred to a different country for criminal prosecution.

[00:50:58] Speaker 04:
It also can take the form of international agreements during wartime such as the Geneva Conventions potentially or it can take the form of a treaty that authorizes the executive to enter into particular agreements and I would call your honor's attention to

[00:51:16] Speaker 04:
Wilson v. Girard, cited in page 33 of our brief, dealing with a U.S.

[00:51:23] Speaker 04:
citizen military prisoner who was being committed to crime in Japan.

[00:51:28] Speaker 01:
But heading to the chase and speaking of sweeping positions, I mean, your position in the district court and appears to be in this court is that there's no positive legal authority for him to go anywhere.

[00:51:42] Speaker 01:
that their only option is to release him or bring him to the U.S.

[00:51:48] Speaker 01:
and charge him with a crime in an Article III court.

[00:51:52] Speaker 01:
Isn't that your position?

[00:51:54] Speaker 04:
Our position is that the government has not identified at this point any positive legal authority to transfer.

[00:52:03] Speaker 02:
Do you think Article II is legal authority?

[00:52:06] Speaker 02:
No, Article II is not legal authority.

[00:52:09] Speaker 02:
Article II is a source of constitutional power.

[00:52:12] Speaker 04:
But this, but it has to be this, when we're talking about the liberty of an American citizen, it has to be, all three branches have to be involved.

[00:52:22] Speaker 04:
It has to have some, it has to root itself to some source of positive authority, either in a statute or in a treaty.

[00:52:27] Speaker 04:
The Supreme Court, Your Honor, has never held whatever foreign affairs power the President might have.

[00:52:34] Speaker 04:
It is never held, in any case, that the President has, under his Article 2 power, the authority to render an American citizen to another country without legal authority.

[00:52:45] Speaker 01:
Let me ask you this.

[00:52:47] Speaker 01:
He's detained in Syria and then transferred and further detained in Iraq.

[00:52:55] Speaker 01:
Was there positive legal authority for him to be moved from Syria to Iraq?

[00:53:03] Speaker 04:
uh... well no your honor we don't we don't think there is because he's not i don't know what we should release them right now well the only possible positive legal authority that would be the same legal authority i think to continue to detain him which is the the issue in the habeas case that is if he were if he were in fact an enemy combatant as a matter of fact

[00:53:24] Speaker 04:
in a matter of law, they would have the authority to move him within US custody or to continue to detain him.

[00:53:33] Speaker 04:
He's disputed that vigorously, and that is presently before the district court.

[00:53:37] Speaker 04:
So the power that they have over his body now, over his corpus, is their assertion that he's an enemy combatant.

[00:53:44] Speaker 04:
He's disputing that, and for that reason, we are arguing he should be charged

[00:53:49] Speaker 02:
But it sounds like your argument is that even if we assume that he is an enemy combatant, let's suppose a situation in which you couldn't dispute that he's an enemy combatant.

[00:53:57] Speaker 02:
I know you do dispute it, but let's just suppose that you couldn't.

[00:54:01] Speaker 02:
It sounds like your legal argument is that even if it's somebody who's undisputedly an enemy combatant, if they're an American citizen, then there's no authority to transfer based on enemy combatancy.

[00:54:14] Speaker 02:
Period, there's just no authority to transfer.

[00:54:16] Speaker 02:
That sounds like that's your legal argument.

[00:54:18] Speaker 04:
Argument they would still have, as an American citizen, they would still have to have to stand in the Geneva Conventions or somewhere else to transfer him, but he's not... The authority is simply that he's an enemy combatant.

[00:54:28] Speaker 02:
So that's predicated on him being an enemy combatant.

[00:54:32] Speaker 02:
And your argument is that that's not enough.

[00:54:35] Speaker 02:
That an American citizen who is validly, factually and legally, validly determined to be an enemy combatant nonetheless can't be transferred by the military to another country.

[00:54:47] Speaker 02:
Your Honor, we still believe there needs to be a positive authority, but that question is not before... I think it sounds like we're going around a circle because what I'm saying to you is the hypothesis is the positive legal authority is the determination that he's an enemy combatant.

[00:55:04] Speaker 02:
And the idea would be that once you've made a determination that an individual is an enemy combatant, part and parcel of that authority, just like the authority... Let's start with this proposition.

[00:55:16] Speaker 02:
Once an American citizen has been validly determined to be an enemy combatant, I take it you wouldn't dispute that there's the authority for the US to detain him as an enemy combatant?

[00:55:26] Speaker 04:
If they have authority to detain him, yeah.

[00:55:28] Speaker 04:
If he's an enemy combatant, they would have authority lawfully to detain him.

[00:55:30] Speaker 02:
Right.

[00:55:31] Speaker 02:
There's cases that... Yes, correct.

[00:55:33] Speaker 02:
So then the proposition would be that part and parcel of detaining somebody as an enemy combatant in connection with an ongoing conflict is

[00:55:43] Speaker 02:
transfer because that's just something that's always happened in history with people who are detained as enemy combatants.

[00:55:49] Speaker 02:
It's part of the give and take of warfare is that countries are exchanging prisoners.

[00:55:54] Speaker 02:
They're engaging in these sorts of actions all the time as part and parcel of warfare.

[00:55:59] Speaker 02:
So just like there's the authority to detain somebody who's validly determined to meet enemy combatant, there's also the authority to transfer someone who's validly determined to be an enemy combatant.

[00:56:08] Speaker 02:
But it sounds to me like your legal position is that

[00:56:11] Speaker 02:
there's just a bar at transfer.

[00:56:12] Speaker 02:
A United States citizen simply can't be transferred based on enemy combatancy.

[00:56:17] Speaker 04:
Well, Your Honor, I mean, the government does not, they disavowed in their brief that they're relying on his enemy combatant status as a basis to transfer.

[00:56:29] Speaker 02:
I'm just asking you to answer the, we can talk about what the government has left open and has not left open, but

[00:56:34] Speaker 02:
I just try to understand the conscience of your legal position, and I think following on what Judge Wilkins was asking, is your legal position that even if you have an individual who's an American citizen, who's been validly determined to be an enemy combatant, that there's no authority to transfer that person?

[00:56:52] Speaker 04:
That authority could exist under the law if he was subject to the laws of war and he was validly detained under the 2001 and 2000 AUMF.

[00:57:01] Speaker 04:
That could certainly potentially be a basis for transfer.

[00:57:03] Speaker 04:
That would be a very different case though, Your Honor, because they are assuming

[00:57:08] Speaker 04:
to the extent that they're relying on his enemy combatant status, which they, again, seems to be a moving target, to the extent they're relying on his status as an enemy combatant.

[00:57:17] Speaker 04:
They're assuming the answer to the question.

[00:57:20] Speaker 04:
And what the Supreme Court said in Hamdi was,

[00:57:24] Speaker 04:
A good faith basis is not enough.

[00:57:26] Speaker 04:
That's essentially what the U.S.

[00:57:28] Speaker 04:
government told the Supreme Court and the Supreme Court and eight justices on that point rejected that when it comes to the liberty of an American citizen, a good faith basis is not enough.

[00:57:39] Speaker 04:
It's not enough to trust the executive branch.

[00:57:41] Speaker 04:
There has to be judicial review.

[00:57:43] Speaker 04:
And so if there has to be judicial review, the United States can't circumvent Hamdi by

[00:57:50] Speaker 04:
relying on his enemy combatant status, or the claim that he's a battlefield detainee, without an opportunity to attest that, and then using that power to forcibly transfer him without legal authority.

[00:58:03] Speaker 02:
So I think part of the government submission is that that's looking at the wrong question, because after Munaf, what we know is that even if there's a dispute, an asserted dispute about the validity of detention as an enemy combatant,

[00:58:18] Speaker 02:
That's just off the table when you get to the question of whether the person can be transferred.

[00:58:22] Speaker 02:
Because Munaf and Omar contested whether they were innocent civilians or enemy combatants.

[00:58:30] Speaker 02:
And the Supreme Court didn't care about that.

[00:58:32] Speaker 02:
They went ahead and authorized the transfer, even though there was still an ongoing open dispute about whether the individuals were enemy combatants.

[00:58:41] Speaker 04:
Well, I think Your Honor covered that question in that they were

[00:58:46] Speaker 04:
in your questioning of the government, but I would want to add one point there, which is that there was no remedy available in Munaf.

[00:58:53] Speaker 04:
As the Chief Justice said in Munaf, the last thing the Munaf petitioners want is release.

[00:59:01] Speaker 04:
There was simply no remedy.

[00:59:02] Speaker 04:
So the court did two things in Munaf.

[00:59:06] Speaker 04:
It rejected the...

[00:59:09] Speaker 04:
It refused to bar their transfer because they were being prosecuted in Iraq.

[00:59:15] Speaker 04:
And secondly, it said because they are being wanted for crimes that they, being prosecuted for crimes that they committed,

[00:59:24] Speaker 04:
In Iraq, while in Iraq, there was no basis for habeas relief.

[00:59:29] Speaker 04:
So there was no relief that the court could provide.

[00:59:33] Speaker 04:
And so it dismissed the petition because there was no available remedy in Munaf.

[00:59:38] Speaker 04:
As I said, the only remedy would be releasing them into Iraqi prosecution or smuggling them out of Iraq, to quote the Supreme Court, because they were wanted for prosecution

[00:59:50] Speaker 04:
So there was no remedy available.

[00:59:52] Speaker 04:
Here, our client has been held for over six months.

[00:59:55] Speaker 04:
He hasn't been charged with a crime by the United States or by anyone else.

[01:00:00] Speaker 04:
And there is a remedy available.

[01:00:01] Speaker 04:
In fact, as the government says on page six of its reply brief, there's a remedy that would fully vindicate his habeas rights, freeing him at a safe location in Iraq.

[01:00:11] Speaker 04:
And were that not possible, or there's also the remedy, as the court noted, that he could be brought to the United States, a remedy that was not available either in Munaf or in Canbuk.

[01:00:22] Speaker 02:
Can I ask this question as a practical matter?

[01:00:24] Speaker 02:
So suppose somebody is detained on the battlefield in the context of ongoing hostilities, and they claim American citizenship at that point.

[01:00:34] Speaker 02:
Is your position that

[01:00:37] Speaker 02:
If that person then can't be transferred even immediately on the battlefield, that the minute that American citizenship comes into play, then essentially what happens is there's a duty on the part of the United States to continue to detain that person to allow a habeas claim to be ventilated.

[01:00:57] Speaker 04:
Certainly once the United States has determined that person's status and there's habeas jurisdiction, there's powers, the court has the authority to review the legality of the detention in order to release, if appropriate, or to prevent an unlawful transfer.

[01:01:15] Speaker 04:
Whether there's a space before a court is involved and what might happen is, I mean it's simply not

[01:01:20] Speaker 04:
before this court about what might be done.

[01:01:22] Speaker 04:
But I would say as a as a I mean, the United States government have a duty as to its own citizens.

[01:01:28] Speaker 01:
Well, let's suppose in Judge Srinivasan's hypothetical, you know, he's allowed to make a phone call and he makes a phone call to the ACLU and says they've got me.

[01:01:39] Speaker 01:
I'm on the battlefield here in Syria.

[01:01:41] Speaker 01:
They say they want to take me to Iraq, file a petition and you file a petition.

[01:01:48] Speaker 01:
What's our authority?

[01:01:51] Speaker 04:
Well, the authority to hear the petition is the authority that's under the court's habeas statute, under Supreme Court decisions such as Hamdi, that when a U.S.

[01:02:03] Speaker 04:
citizen is in the detention of his government, the writ reaches them.

[01:02:09] Speaker 01:
He's in custody, but the argument is, I don't want to be moved to Iraq, and that's before some

[01:02:20] Speaker 01:
U.S.

[01:02:20] Speaker 01:
District Court judge on emergency habeas?

[01:02:26] Speaker 01:
What's that judge to do?

[01:02:29] Speaker 04:
I think, just so I understand, I think it would be different, it's a different question if the U.S.

[01:02:34] Speaker 04:
picked that person up and then they wanted to move them to Iraq, as the government says in this case, and hold them there because that's a safe place

[01:02:44] Speaker 04:
to hold them.

[01:02:45] Speaker 04:
I think that would not, that would be different than, if they were, that would be, then the court would decide the habeas petition would be litigated in due course.

[01:02:54] Speaker 04:
So there would be no, I don't think there would be a role to, there wouldn't be no role, excuse me, there would be no role for the court if the United States picks someone up.

[01:03:01] Speaker 04:
and move them to a US prison and held them in the military prison there.

[01:03:06] Speaker 04:
That decision to move them to US prison, that's within the purview of the executive branch.

[01:03:11] Speaker 04:
If the United States were at that point to seek to transfer that citizen to a different country, there would be review.

[01:03:21] Speaker 02:
There's no review about... Which requires continued detention.

[01:03:25] Speaker 02:
Right, so then the position would be that even in the immediacy of a battlefield capture, that the minute that the citizenship becomes apparent and the person makes the phone call, that's hypothesized by Judge Wilkins, that then there's essentially an obligation on the part of the United States to continue to detain him.

[01:03:43] Speaker 02:
to facilitate the litigation of the habeas claim?

[01:03:47] Speaker 04:
No, I mean, certainly the United States could release the person.

[01:03:50] Speaker 04:
I mean, there's no obligation to remain in custody while they litigate the habeas petition if they file the habeas.

[01:03:56] Speaker 02:
Oh, sure.

[01:03:57] Speaker 02:
I mean, I understand the release option.

[01:03:59] Speaker 02:
I'm just saying that in terms of transfer, there's no ability to transfer.

[01:04:04] Speaker 04:
Involuntarily, no.

[01:04:06] Speaker 02:
By hypothesis, the government obviously doesn't want to release the person because they have a legitimate good faith belief that the person's an enemy combatant.

[01:04:14] Speaker 02:
But your position would be that even if all this happens in the immediacy of the battlefield, that once there's a capture and an assertion, that then there's either release or has to be continued detention, no ability to transfer, even on a spur of the moment, determination.

[01:04:33] Speaker 04:
In a case of an American citizen with a habeas petition that's been filed, there is no authority to... Well, there might be authority.

[01:04:44] Speaker 04:
They might be transferring them pursuant to legal authority, but that would be subject to review.

[01:04:49] Speaker 04:
Our position is not, to be clear also, that the United States cannot transfer Doe.

[01:04:56] Speaker 04:
It's just they cannot transfer him involuntarily without legal authority and review of that authority.

[01:05:03] Speaker 04:
So it doesn't matter at what point in the continuum, that option is not on the table for a U.S.

[01:05:09] Speaker 04:
citizen.

[01:05:09] Speaker 04:
So if the United States takes someone, captures them on a battlefield,

[01:05:12] Speaker 04:
If they assert, as they've asserted here, that he's an enemy combatant, they can continue to detain him on that basis, subject to judicial review under Hamdi and other Supreme Court precedents.

[01:05:25] Speaker 04:
They can release him.

[01:05:26] Speaker 04:
They can charge him with a crime.

[01:05:28] Speaker 04:
which they haven't done, or they can transfer him pursuant to valid legal authority and subject to review.

[01:05:35] Speaker 04:
They can't forcibly render an American citizen without some source of authority.

[01:05:40] Speaker 04:
It has to go back at its root.

[01:05:42] Speaker 04:
This goes to Your Honor's Article 2 question.

[01:05:44] Speaker 04:
I do want to make sure I answer that.

[01:05:45] Speaker 04:
It has to, the Supreme Court said in Munaf, this court made clear in Omar 2, Wilson v. Girard,

[01:05:53] Speaker 04:
The Supreme Court said there, it has to trace itself back to some source in positive law.

[01:05:58] Speaker 04:
It could be a statute, as it was in Munaf.

[01:06:01] Speaker 04:
It was the 2002 AUMF, which authorized the United States to enforce Security Council resolutions in Iraq.

[01:06:10] Speaker 04:
which included acting essentially as Iraq's policeman and jailer.

[01:06:15] Speaker 04:
I would point out to Your Honor Judge Randolph's concurring opinion in Munaf in the D.C.

[01:06:20] Speaker 04:
Circuit where he discusses that, and page 25 of the Solicitor General's brief to the Supreme Court.

[01:06:25] Speaker 04:
That's where it's most crisply detained.

[01:06:27] Speaker 04:
So it could be a treaty or a statute authorizing the executive to do something, but it has to go back

[01:06:35] Speaker 04:
to find its source in positive law and some kind of something that Congress has approved either through a treaty or through a statute.

[01:06:47] Speaker 04:
As the court said in Hamdi, when the liberty of a citizen is at stake,

[01:06:51] Speaker 04:
all three branches have to be involved.

[01:06:54] Speaker 04:
And that's whether the United States wants to detain a person indefinitely as an enemy combatant, or whether they want to dispose of the liberty by forcibly transferring that person to another sovereign.

[01:07:05] Speaker 02:
Does the congressional authority that you're hypothesizing the congressional engagement on this have to deal specifically with transfer?

[01:07:14] Speaker 02:
Or is it just that as long as we're in a situation in which the executive is waging war,

[01:07:20] Speaker 02:
that then part and parcel of that authority to wage war is the authority to transfer.

[01:07:24] Speaker 04:
Well, I think that goes, in a sense that goes back to the question your honor was asking me before.

[01:07:28] Speaker 04:
The answer is potentially, like I think it would have to, I think for an extradition,

[01:07:34] Speaker 04:
It would certainly have to face charges.

[01:07:36] Speaker 04:
It would have to spell out the source of authority.

[01:07:40] Speaker 04:
They'll have to spell out the transfer provision.

[01:07:43] Speaker 04:
If there were some kind of power over to detain enemy combatants, it is possible that the court, if the person were found to be an enemy combatant, that the transfer authority could be potentially inferred.

[01:07:55] Speaker 04:
But the government is not relying on anything.

[01:07:57] Speaker 04:
They've not provided any statute or any treatment.

[01:08:00] Speaker 02:
So one thing the government's relying on is Kiamba.

[01:08:03] Speaker 02:
In Quiemba, there was no ongoing authority to detain by assumption of the government because the conclusion had been reached that the individuals were not enemy combatants.

[01:08:15] Speaker 02:
And yet, even though there was no authority to detain, there was still a validation of the authority to transfer.

[01:08:23] Speaker 02:
The idea that transfer could be had was not disputed.

[01:08:27] Speaker 02:
So how do you deal with Kiamba, given that in Kiamba you're dealing with a situation in which there wasn't an authority to detain to begin with?

[01:08:35] Speaker 04:
Well, as Judge Kavanaugh noted in his opinion in Kiamba 2,

[01:08:41] Speaker 04:
That case dealt with the transfer of non-citizens, wartime alien detainees who by long-standing practice could be repatriated to their home country or to a safe third country, either at the conclusion of hostilities or after there was no longer desire to detain them.

[01:09:00] Speaker 04:
And there was no basis for, there was no remedy available in Quiambatu.

[01:09:05] Speaker 04:
because they couldn't be released at Guantanamo, and they couldn't be released in the United States, because as this court said, the determination with regard to aliens is, the admission of aliens is a political branch determination.

[01:09:19] Speaker 04:
So there was no, as in Munaf in that sense, there was no habeas relief available.

[01:09:27] Speaker 04:
because there was no possible remedy.

[01:09:29] Speaker 04:
There was nothing the court could do in terms of providing habeas relief, which is released from custody, which is what we're asking for here.

[01:09:38] Speaker 01:
I want to just make sure I'm clear on a record and factual question.

[01:09:45] Speaker 01:
Correct me if I'm wrong, but I did not see anywhere in your petition or anywhere in your response to the factual return that was filed by the government an assertion and a pleading that Doe was not an enemy combatant.

[01:10:06] Speaker 04:
Your Honor, we dispute that, it's on, I think it's paged.

[01:10:11] Speaker 04:
one or two or three, one of the, I think it was on page two and three, or one and two of the response to the petition, to the return, where it disputes the central allegations the government has proffered.

[01:10:27] Speaker 04:
Specifically, he asserts that he traveled to Syria,

[01:10:30] Speaker 04:
as to learn about the conflict, report about the conflict.

[01:10:34] Speaker 04:
He was tortured, captured and tortured by ISIS while he was in custody, taken into custody there, and that he sought his relief, and he was fleeing the violence there when he was taken into custody by the Kurds and then taken to the United Americans.

[01:10:56] Speaker 04:
And at no time does the government even assert that he was

[01:11:00] Speaker 04:
that he took part in hostilities against the United States or committed any violence.

[01:11:08] Speaker 04:
It's at page 97 and 98 of the appendix.

[01:11:13] Speaker 01:
Well, 97 says, petitioner accepts the government's allegations about him as true for the limited purpose of this threshold challenge and has reserved his right to challenge those allegations at a later stage.

[01:11:30] Speaker 01:
and then says that there's some inaccuracies, et cetera, et cetera.

[01:11:39] Speaker 04:
Yeah.

[01:11:44] Speaker 04:
That's that's correct your honor we he accepted the allegations For purposes of challenging the government's legal authority to hold him because if there's no legal authority to hold him Which we claim there's not and which is before the district court There's no the facts are irrelevant.

[01:12:04] Speaker 01:
So it's essentially But if if his status as an enemy combatant

[01:12:10] Speaker 01:
I guess to get back to Judge Srinivasan's line of inquiry is a source of legal authority and you kind of assume that for the sake of argument for the position that you take in the district court and kind of where we are here then I guess we're kind of like a dog chasing its tail here or something.

[01:12:39] Speaker 01:
You put us in a

[01:12:41] Speaker 01:
you have assumed for the sake of argument a fact that's true that might be the positive legal authority that the government needs.

[01:12:52] Speaker 01:
And I guess I'm trying to get you to respond to that conundrum or how we should deal with that litigation posture that you are taking.

[01:13:02] Speaker 04:
We assumed the truth of those facts solely for the limited purpose of his challenge to his detention.

[01:13:10] Speaker 04:
We did not assume the truth of those facts for purposes of his transfer, and the government is not relying on that.

[01:13:17] Speaker 04:
They disavow that they're relying on his status as an enemy combatant to transfer him.

[01:13:25] Speaker 01:
If they were to... Maybe we will rely on it.

[01:13:29] Speaker 04:
Well, I think then that, Your Honor, that would be

[01:13:32] Speaker 04:
inconsistent with Hamdi because he's, well, first of all, he's reserved his right to dispute the facts, but he's challenged the government's legal authority to hold him.

[01:13:42] Speaker 04:
So if this court were going to decide that the government had legal authority to transfer Doe, assuming the facts were true,

[01:13:53] Speaker 04:
under the AUMFs, it would need to decide whether he was detainable under the AUMFs.

[01:13:59] Speaker 04:
And the government has not relied on that.

[01:14:02] Speaker 04:
If the court wishes to have further briefing and a separate hearing to discuss that issue, we're prepared to do that.

[01:14:09] Speaker 04:
But we've tested both the legal and the factual basis for his detention.

[01:14:15] Speaker 04:
The government is not relying on his status as an enemy combatant.

[01:14:21] Speaker 04:
So he is exactly like the journalist that Your Honor hypothesized about, the CNN or MSNBC journalist that could be sent to Siberia.

[01:14:30] Speaker 04:
They're not relying on his status as an enemy combatant.

[01:14:33] Speaker 04:
And if they were, that would be improper because they would just be assuming the answer to the question in the habeas.

[01:14:40] Speaker 01:
But what processes do then?

[01:14:45] Speaker 01:
What process is Doe do now then to challenge that?

[01:14:51] Speaker 01:
that determination?

[01:14:54] Speaker 04:
With respect to his detention or his transfer?

[01:14:58] Speaker 04:
Well, with respect to his detention, it's the process that was laid out in Hamdi, which was the challenge it encompasses first, challenge to the government's legal authority to do the statutes that the government is relying on, cover the person in question.

[01:15:14] Speaker 04:
Is there independent Article II power to detain?

[01:15:18] Speaker 04:
We say there's not.

[01:15:19] Speaker 04:
And even if there is, is there a factual basis

[01:15:22] Speaker 04:
for that detention?

[01:15:24] Speaker 04:
Is there a, is after, based on the Matthews versus Eldridge balancing test, a meaningful opportunity to be heard and contest the facts?

[01:15:31] Speaker 04:
Is there a factual basis that the person is an enemy combatant?

[01:15:34] Speaker 04:
It's not enough simply to trust the executive or a good faith basis.

[01:15:37] Speaker 04:
That's what the Supreme Court rejected in Hong Kong.

[01:15:40] Speaker 02:
Are you drawing a distinction between detention and transfer?

[01:15:43] Speaker 02:
Because in response to Judge Wilkins' question, you asked, are you talking about authority to detain or authority to transfer?

[01:15:50] Speaker 02:
And your position is that, do you see a difference?

[01:15:56] Speaker 02:
I thought your position was that in order to have a transfer, you'd have the authority, you need the authority to detain, to begin with, or is that not your position?

[01:16:06] Speaker 04:
Yes, in order to transfer, you need the authority to detain, but as in Munaf, the authority to transfer could be separate from the authority to detain.

[01:16:18] Speaker 04:
In other words, like in Munaf, you need more authority to transfer.

[01:16:22] Speaker 02:
You need at least the same authority to transfer as you do to detain, but you might need more.

[01:16:26] Speaker 02:
Is that your point?

[01:16:27] Speaker 04:
No, it's a different source of authority.

[01:16:29] Speaker 04:
It's a different source of authority.

[01:16:33] Speaker 04:
For example, it could be an extradition treaty.

[01:16:36] Speaker 04:
Or it could be, as in Munaf, a statute that implemented an international agreement that allowed for the transfer.

[01:16:44] Speaker 04:
Or in Wilson versus Girard, it was a security treaty that authorized an agreement between the United States and Japan over which countries should have jurisdiction over crimes committed by service members.

[01:16:56] Speaker 04:
So it's a- I guess, yeah, I understand your point.

[01:17:00] Speaker 02:
I guess I'm hypothesizing a situation in which the authority

[01:17:03] Speaker 02:
that's being asserted is the detention as an enemy combatant.

[01:17:07] Speaker 02:
Not continued detention for some other reason like potential prosecution for crimes committed in the country to which the person would be, to whose custody the person would be transferred.

[01:17:22] Speaker 04:
If it's detention, if they're relying on the same, if the government is relying on the same power to transfer that it is to detain, then absolutely you need to find out whether the court needs to establish that the detention is proper.

[01:17:37] Speaker 04:
If the government wants to transfer him based on his status or their good faith determination that he's an enemy combatant under the AUMFs, the court then would first need to find that he is in fact an enemy combatant.

[01:17:51] Speaker 04:
And so if that's the basis the government's relying on, then the government is free to present that argument to the district court and the district court can adjudicate if he's an enemy combatant.

[01:18:03] Speaker 04:
And then if he is an enemy combatant,

[01:18:05] Speaker 04:
That may well justify his transfer.

[01:18:08] Speaker 02:
So this gets back to where we were at the beginning of the agreement to some extent.

[01:18:10] Speaker 02:
So anytime the government wants to say, we're detaining somebody who's an enemy combatant, we picked them up on the battlefield, they were engaged in hostilities against our troops, and they're claiming U.S.

[01:18:21] Speaker 02:
citizenship.

[01:18:22] Speaker 02:
and we want to transfer them in the give and take of warfare to a different country, your submission is that the Hamdi process for legality of detention is required in every instance in which that's the case.

[01:18:37] Speaker 02:
You have to go through, short of release, you've got the caveat of release, but short of release in every instance the person is entitled to the Hamdi process before they can be transferred.

[01:18:50] Speaker 04:
If the basis for detain is enemy combatant, yes, that's correct.

[01:18:54] Speaker 04:
Because otherwise, Your Honor, it would present the rule the government is asking for, they try to obscure it, but the rule the government is asking for is that if they determine someone is a battlefield detainee, a reporter, embedded journalist, errant tourist, to use the language from Hamdi, if they determine that person is a battlefield detainee,

[01:19:16] Speaker 04:
then the government has unilateral and unreviewable authority to transfer that person to any country in which they determine has a legitimate interest in him, even if they're a citizen.

[01:19:28] Speaker 02:
The plurality in Hamdi said this at 534.

[01:19:32] Speaker 02:
The parties agree that initial captures on the battlefield need not receive the process we have discussed here.

[01:19:39] Speaker 02:
That process is due only when the determination is made to continue to hold those who have been seized.

[01:19:45] Speaker 02:
So for detention purposes, it seems like the plurality in Hamdi was drawing a distinction between captures and immediate detentions in battlefield and continued detentions.

[01:19:58] Speaker 02:
And why wouldn't the same be true of transfers?

[01:20:04] Speaker 02:
That if you have a capture and

[01:20:07] Speaker 02:
immediate battlefield determination or something, I mean, I don't know what the exact time frame is, but presumably the military has some discretion in determining how to deal with people they pick up on the battlefield, that there could be a determination made with some immediacy that under the Hamdi calculus wouldn't be subject to habeas review in the same way as continued detention, which as a practical matter could accommodate this sort of review that Hamdi contemplated.

[01:20:41] Speaker 04:
So I think the answer boils down to when habeas rights attach.

[01:20:48] Speaker 02:
Once habeas rights attach... I might attach, but then the question would be what processes do.

[01:20:54] Speaker 02:
And the way I understood the plurality's statement is that you could draw a distinction between something that happens in the immediacy of the battlefield and something that becomes continued detention.

[01:21:08] Speaker 02:
And I guess my question is, could one

[01:21:11] Speaker 02:
draw the same kind of divide with respect to transfers?

[01:21:20] Speaker 04:
Yes, I think that's what the passage in HMD suggests.

[01:21:26] Speaker 04:
The question

[01:21:30] Speaker 04:
Well, here, it's possible that your Honor could draw that distinction.

[01:21:34] Speaker 04:
I think if there was no basis for a court to review the detention in the immediacy of a battlefield capture, there might not be a basis for a court to review the transfer.

[01:21:48] Speaker 04:
But here, and this was an issue that was explored in the district court when the court was determining whether or not there was habeas jurisdiction.

[01:22:00] Speaker 04:
The issue is once, what Hamdi says, and I think what's clarified in Boumediene, is once the executive determines the status of some individual, the label of enemy combatant on them, at the very latest, at that point, habeas jurisdiction attaches.

[01:22:17] Speaker 04:
And once habeas jurisdiction attaches and the court has power over the custodian and over the detainee,

[01:22:24] Speaker 04:
The detention and the forcible transfer are both subject to judicial review.

[01:22:30] Speaker 02:
So what happens in... Let me ask you one other question, which is a potential basis of distinction that hasn't been aired so far this morning as far as I can tell.

[01:22:38] Speaker 02:
In Justice Scalia's dissenting opinion in Hamdi, who in Justice Scalia, of course, adopted a position that was, if anything, more favorable to American citizens, he drew a distinction based on where the person, or a potential distinction based on where the person is being held.

[01:22:53] Speaker 02:
Because he said, where the citizen is captured outside and held, where the citizen is captured outside and held outside the United States, the constitutional requirements may be different.

[01:23:04] Speaker 02:
And that's this case.

[01:23:06] Speaker 02:
because Doe was held and captured outside the United States.

[01:23:09] Speaker 02:
And so I'm just wondering if that's the basis of drawing a different constitutional line than the one drawn in Hamdi in terms of the kind of protections that would be owing for the reason that Justice Scalia suggested him.

[01:23:22] Speaker 04:
Yes, I mean it was, Justice Scalia's position, the position that he was articulating there was whether a citizen had to be

[01:23:33] Speaker 04:
subjected to full criminal process or could be detained as an enemy combatant subject to the plurality holding of the Matthews versus Elders balancing test.

[01:23:44] Speaker 04:
So the answer is it's irrelevant to the extent that, because for our client who was captured outside the United States under Hamdi,

[01:23:53] Speaker 04:
under the plurality of Justice O'Connor's opinion and the concurring opinion of Justice Souter, he is entitled to at a minimum the meaningful opportunity to challenge the legal and the factual basis for his detention.

[01:24:08] Speaker 04:
So his locus of capture matters only with respect to Justice Scalia in terms of whether he gets full criminal process or can be held in combat.

[01:24:18] Speaker 04:
And so the holding of the court of Justice O'Connor

[01:24:22] Speaker 04:
and the Justice Souter is that he gets the meaningful opportunity to challenge the factual and legal basis of his detention.

[01:24:30] Speaker 04:
And I would add also, note Justice Kennedy's comment in Blumetian at page 765, that the political branches have no power to switch the Constitution on and off at will by where they physically move the prisoner.

[01:24:46] Speaker 04:
So it can't, as Justice O'Connor said in Hamdi,

[01:24:50] Speaker 04:
make a determinant of constitutional difference as to those rights because they are deciding to keep him in Iraq as opposed to whether they move into the United States.

[01:25:01] Speaker 04:
It's where the military wants to hold him within U.S.

[01:25:03] Speaker 04:
custody.

[01:25:04] Speaker 04:
We can see that's a military matter, but it can't affect the rights that he is due as an American citizen.

[01:25:09] Speaker 01:
But let's suppose the military says, well, you know,

[01:25:15] Speaker 01:
Do is contested his status, and we don't know.

[01:25:19] Speaker 01:
Maybe he is an enemy combatant.

[01:25:21] Speaker 01:
Maybe we're wrong about that.

[01:25:23] Speaker 01:
Bottom line is, though, we don't want to hold this guy anymore.

[01:25:30] Speaker 01:
And let's say, for the sake of this hypothetical, he can't be released in Iraq, because Iraq says, we don't want you to release him here.

[01:25:39] Speaker 01:
We don't want him in our country.

[01:25:41] Speaker 01:
So the US,

[01:25:45] Speaker 01:
spins a globe and puts their finger down and says, okay, Namibia, they're an ally and we call them up and they say, okay, fine, we'll take them.

[01:25:59] Speaker 01:
Why can't they just release them to Namibia and then he can, he's released and he can seek to return to the US

[01:26:14] Speaker 01:
where he can seek to go wherever else.

[01:26:17] Speaker 01:
But, you know, he traveled out of the U.S.

[01:26:21] Speaker 01:
and went to voluntarily to Syria.

[01:26:24] Speaker 01:
Well, maybe involuntarily he ended up in Namibia, but, you know, at least he's released.

[01:26:32] Speaker 01:
Why couldn't the U.S.

[01:26:34] Speaker 01:
just at this point say,

[01:26:36] Speaker 01:
We want to wash our hands of the matter and release them someplace.

[01:26:40] Speaker 01:
And why does that particular decision require some sort of positive legal authority if there's no indication at all that Namibia has any interest in prosecuting him or anything and he can seek to return home from there just like he could seek to return home from anywhere else?

[01:27:06] Speaker 04:
Well, the United States does not, under the due process clause and the separation of powers, cannot dispose of the liberty of a U.S.

[01:27:14] Speaker 04:
citizen through a forcible transfer.

[01:27:17] Speaker 04:
Because the United States, the executive branch has never had, there's no case the government cites, that said the executive branch can wash their hands of an American citizen, an American citizen, by forcibly transferring him to another country.

[01:27:31] Speaker 04:
A forcible transfer is not equivalent to release.

[01:27:34] Speaker 04:
It's not equivalent to at least as a matter of law or common sense.

[01:27:38] Speaker 04:
If it was the same equivalent as a matter of law, there would literally be no extradition and no immigration case law.

[01:27:44] Speaker 01:
And as a matter of common sense, Your Honor, I'm sure can appreciate... But he went to a place where he can't...

[01:27:51] Speaker 01:
He can't be released to that place.

[01:27:54] Speaker 01:
He voluntarily traveled there.

[01:27:56] Speaker 01:
And let's suppose it was legally appropriate for him to be removed from Syria to Iraq.

[01:28:04] Speaker 01:
And Iraq says at that point, we don't want him anymore.

[01:28:12] Speaker 01:
And the military doesn't want to hold him anymore.

[01:28:15] Speaker 01:
They have to transfer him, right?

[01:28:20] Speaker 01:
involuntarily transfer him?

[01:28:24] Speaker 04:
No, because he can, as a US, that may be true as a non, if there's no possibility of release for a non-citizen, and they don't want to detain the non-citizen anymore, and they can't release the non-citizen where they are, they may have, at that point, like in Quiemba, they have to find another country.

[01:28:40] Speaker 04:
to send that person to, but for a U.S.

[01:28:42] Speaker 01:
citizen has an absolute right to come back to the United States.

[01:28:54] Speaker 04:
Well, the district, the district, he's been unlawfully detained, and so the district court, in the exercise of its equitable habeas powers, in fashioning a remedy appropriate to the circumstances of the particular case, has the power, and has had the power for like 800 years, courts, judges, to produce the body in the courtroom.

[01:29:16] Speaker 04:
That's what happened in Quiemba.

[01:29:18] Speaker 04:
The judge, Judge Urbina, ordered that the petitioners be brought exercising their habeas powers to DC.

[01:29:24] Speaker 04:
That was illegal or found to be illegal or improper because they were non-citizens and it conflicted with powers over immigration.

[01:29:31] Speaker 04:
This is an American citizen.

[01:29:32] Speaker 04:
There's no, I mean, there's nothing that would bar a court if necessary.

[01:29:37] Speaker 04:
from ordering that the petitioner be brought back here.

[01:29:39] Speaker 04:
That said, Your Honor, that's a hypothetical that's not presented by this case.

[01:29:44] Speaker 04:
The government has said in its brief that release to a safe location in Iraq would give petitioner the relief he's asking for.

[01:29:54] Speaker 04:
Our petition

[01:29:56] Speaker 04:
is simple.

[01:29:57] Speaker 04:
Doe has not done anything wrong.

[01:30:00] Speaker 04:
He believes he has not committed any crime against the United States, and he's asking merely to be charged with a crime or released.

[01:30:07] Speaker 04:
The government, after six-plus months of custody, has not charged him with a crime, nor has Iraq, nor has any other country.

[01:30:15] Speaker 02:
In this case, so I think it's undisputed in this case that when he was initially captured, he claimed United States citizenship so that he could get the protection of U.S.

[01:30:23] Speaker 02:
forces, right?

[01:30:25] Speaker 04:
He identified himself as a U.S.

[01:30:27] Speaker 04:
citizen, correct?

[01:30:28] Speaker 02:
Yeah, and so I take it that when someone does that, they assume that what they don't, I don't think they're necessarily assuming that the U.S.

[01:30:36] Speaker 02:
is gonna come and protect me as a U.S.

[01:30:40] Speaker 02:
citizen and then, you know, necessarily keep me right where I am or keep me right where I am, but then give me some, a secret service detail to protect me as I go where I wanna go.

[01:30:52] Speaker 02:
I think what they,

[01:30:54] Speaker 02:
what they're asking for when they assert U.S.

[01:30:57] Speaker 02:
citizenship is come take me somewhere.

[01:31:00] Speaker 02:
So it's necessarily presupposed that he was gonna be moved by the U.S., right?

[01:31:06] Speaker 02:
So it's part and parcel of his claim of U.S.

[01:31:08] Speaker 02:
citizenship was that he was gonna be taken somewhere.

[01:31:10] Speaker 02:
It wouldn't necessarily mean take me back to the U.S.

[01:31:13] Speaker 02:
It just means take me some, get me out of here.

[01:31:15] Speaker 02:
Take me somewhere and that could be wherever the U.S.

[01:31:19] Speaker 02:
decides it's appropriate to take me.

[01:31:22] Speaker 02:
Isn't that necessarily what's going on in a situation in which somebody asserts the United States citizenship in a context like this?

[01:31:29] Speaker 04:
Well, he asserts his citizenship, he asserted his rights or protections of U.S.

[01:31:34] Speaker 04:
citizens, sacred protections, and then he was brought by the United States to Iraq.

[01:31:41] Speaker 04:
He's been detained now for six months.

[01:31:44] Speaker 04:
His claim is he's not asking, the petition does not ask to be released in the United States.

[01:31:48] Speaker 04:
It's simply to release Simplicitor.

[01:31:50] Speaker 04:
It's the polar opposite of Munaf, Your Honor.

[01:31:53] Speaker 04:
He's asking to be for the United States to open the jailhouse doors and let him go.

[01:31:58] Speaker 04:
They could not do that in Munaf because the petitioners there were being prosecuted for ongoing criminal charges.

[01:32:06] Speaker 04:
They were literally being brought by the United States and the multinational force to the Iraqi court every day and the court enjoined that.

[01:32:13] Speaker 04:
The lower courts enjoined that and they halted the trial.

[01:32:16] Speaker 04:
He could not be released.

[01:32:17] Speaker 04:
The Munaf petitioners could not be released in Iraq.

[01:32:20] Speaker 04:
We are simply asking, after now six months of detention, that he be freed.

[01:32:25] Speaker 04:
The United States doesn't have the power to forcibly transfer him to another government.

[01:32:31] Speaker 04:
And so he was asking for the protections of the United States.

[01:32:34] Speaker 04:
He did not – he was not – by virtue of claiming his U.S.

[01:32:37] Speaker 04:
citizenship, he was not inviting the United States to render him to any country it deemed suitable.

[01:32:43] Speaker 04:
without any kind of review.

[01:32:45] Speaker 04:
He claims and maintains he has not committed any crime or done anything wrong.

[01:32:51] Speaker 04:
No one's charged him with a crime.

[01:32:53] Speaker 04:
There's no barrier to his release.

[01:32:56] Speaker 02:
Thank you.

[01:32:58] Speaker 02:
Thank you, Counsel.

[01:32:59] Speaker 02:
It's customary in this situation that we ask whether Appellants' Counsel has any time remaining.

[01:33:05] Speaker 02:
I think we know the answer to that, but we'll give you three minutes for rebuttal anyway.

[01:33:09] Speaker 03:
Your honor, I think it might be more useful for the court if we just move to the sealed proceeding.

[01:33:13] Speaker 02:
That's fine.

[01:33:13] Speaker 03:
If that's okay with your honors.

[01:33:15] Speaker 02:
Yeah.

[01:33:15] Speaker 02:
Thank you.

[01:33:16] Speaker 02:
That's certainly fine with us.

[01:33:17] Speaker 02:
Okay, we'll take a recess while we go into and then go into closed session.