A federal appeals court on Friday held its first session to consider whether to allow the involuntary transfer of a dual-citizenship suspected member of ISIS from US military custody in Iraq to a third country. The court refused to disclose the name or the first-country of the ISIS fighter, but according to US media sources, he is from the Middle East and had attained the US citizenship.
US sources reported on Saturday, that President Donald Trump wants to send the ISIS member back to his first country. Trump also contacted leaders in his homeland and indicated that he received assurances that the man will receive a fair trial when he returns home.
The Washington Post indicated on Saturday that this is an unusual case before the US Court of Appeals for the DC Circuit and it raises significant questions about how the courts balance national security interests with the constitutional rights of citizens.
Judge Sri Srinivasan asked the attorney representing the Justice department whether he could name another case in which a US citizen held in one country was forcibly transferred to another.
Justice Department representative James Burnham responded that: “No, not as I stand here.”
He urged the court to defer to the executive branch on matters involving military operations and diplomatic relations.
Meanwhile, Attorney Jonathan Hafetz of the American Civil Liberties Union (ACLU) told the court there must be a legal basis for such a hand-off based on a treaty or statute and not “an ad hoc executive deal.”
“They can’t just pluck someone and hand them over. . . based on executive say-so,” Hafetz said according to the Washington Post.
Hafetz argued that the ISIS fighter didn’t ask to be taken to Iraq, but asked for help, adding: “They could have brought him to the US.”
Last week, the Federal Court intervened to protect the fighter indicating the Pentagon should give the attorney 72 hours’ notice before transferring the suspect.
The Department of Defense on April 16 told US District Judge Tanya Chutkan it planned to move the man to a third country.
Chutkan described as “disingenuous” the government’s argument that the transfer would amount to release because the man would no longer be in US custody, saying “release from custody and involuntary transfer to the authorities of another country are not interchangeable concepts.”
Burnham pointed to evidence the man had joined or “substantially supported” ISIS, with government filings show the man told the FBI he worked for the ISIS guarding a gas field and monitoring civilians.
In court Friday, the government emphasized the man had landed in US custody because of his decision to travel to an overseas battlefield.
The man has denied being an ISIS fighter, according to his attorneys, who said the government must either charge him with a crime or release him.
The judges did not indicate how soon the panel would rule on the possible transfer.
