On May 7, the federal court of appeals for the District of Columbia issued an opinion related to an individual known only as John Doe, under a petition for habeas corpus filed on his behalf by the American Civil Liberties Union (ACLU). The man is a dual U.S.-Saudi Arabian citizen, and has been held as an enemy combatant since being seized in ISIS-controlled territory within Syria by forces allied with the United States some months ago. He is presently being held in detention by U.S. military officials within Iraq.
It is an interesting decision, because it doesn't deal directly with the case-in-chief, the petition for release under a writ of habeas corpus. Instead, the circuit court ruled on whether the United States should be allowed to render the man to a third country — apparently Saudi Arabia — with which our country has no extradition treaty without an evidentiary finding as to whether the man was, in fact, an enemy combatant and ISIS-affiliated fighter, both of which he denies. The circuit court upheld a lower court decision denying the United States that course of action, leaving them stuck with how to proceed.
The rub here, of course, is that the man is an American citizen, albeit of dubious loyalty if the facts of his capture in the ISIS-dominated portion of war-torn Syria are true. The court's language leaves one with the impression that it would gladly have deferred to the executive's war and foreign policy powers if the man had only been of some other nationality. That the United States sought to render him to another country to which he also owes fealty through citizenship did not sway the court at all. One wonders at the man's internal compass — if he is also Saudi Arabian, and Saudi Arabia is also an enemy of ISIS, then clearly his loyalties to the cause of jihad must be stronger than any binds of citizenship. Of course this is probably evident from his having been seized in a theater of war in Syria, once an ISIS stronghold.
According to The Hill, U.S. authorities are trying to figure out how to proceed, because they are unsure they can present in court a case that would establish his twisted allegiance to ISIS over his countries, and his combatant activities on behalf of ISIS. One suspects this is less a lack of proof, per se, than an unwillingness to reveal the sensitive and likely highly classified sources and methods that led them to pinpoint and capture him.
The case reveals the dilemma for our government when dealing with traitorous Americans. Our laws and Constitution act as significant barriers to effectively dealing with them in today's world of terror and asymmetrical warfare. I don't suggest that this shouldn't be so; no government's power should be unfettered. But it raises significant questions that our legislators and policy-makers have avoided for years, having to do with how "John Doe" acquired his citizenship. It also raises a philosophical-moral question of import to the judiciary.
The first issue for legislators and policymakers is this: If Doe was born in the United States of alien parents — particularly if they were anything other than resident aliens — the case raises once again the propriety of birthright citizenship. There are many reasons to reject this as an obligation toward everyone who by happenstance is born in the United States. As a 2011 Center for Immigration Studies report said:
In an open and honest discussion we as a society should begin by asking ourselves, do we as Americans undervalue our own citizenship by giving it away so freely, and is the generosity of spirit with which we have chosen to interpret the Fourteenth Amendment truly in our national interest and security? This is a conversation that deserves to be held — soon — without rhetoric, devoid of vitriol, and with more light than heat.
Nothing has changed since those words were written; no national dialogue has been held.
We have seen this issue of multiple "allegiances" before, most notably with the case of Anwar al Awlaki, the firebrand Muslim cleric responsible for so much terror and death, who derived his U.S. citizenship from nonimmigrant students who happened to be in the United States at the time of his birth. Like Doe, al Awlaki hated the United States, yet for many years took refuge in the protective cover that his citizenship gave him — until, that is, he was killed in a U.S. drone strike in Yemen, where he ultimately fled to preach his hate.
The second issue for legislators and policy makers is this: If Doe is a citizen by virtue of naturalization, we must once again ask ourselves exactly how well our government's vetting processes are working. Clearly not well enough, given the multiplicity of cases involving spies, terrorists, human rights abusers, war criminals, and even pedophiles who have gotten through the system (see here, here, and here). Yet, like the dialogue about changing birthright citizenship laws, nothing much has changed. The Trump administration has directed more vetting and scrutiny, but what if there is a fundamental flaw in the way the naturalization (and denaturalization) laws themselves are structured?
The third issue is specifically for the judiciary to ponder: By issuing this decision, both the district and appellate courts have unintentionally opened up that can of worms known as the "rule of unintended consequences". Do these jurists realize what they have done by setting up the Gordian knot that the military and law enforcement authorities now find themselves in with relation to John Doe? It seems to me that they may actually be forcing them into a kind of reductionist approach that says, "Well, if we're going to have this much trouble from the courts when we take an American enemy combatant into custody, next time we'd be better off killing him in-theater instead and just be done with it." What a sad irony.
Meantime, what's to be done about Doe?
A suggestion: If Doe did obtain his citizenship via naturalization, then it's time to bring in a team of experts from U.S. Citizenship and Immigration Services and Immigration and Customs Enforcement. Use these adjudicators and investigators to exhaustively pore over the man's file and his background (including his social media profile) to see if there isn't a weak spot, someplace where he lied or withheld material information having to do with his background or core Islamic fundamentalist beliefs, to find information that could — and should — have led to denying him naturalization in the first place. If so, then initiate court proceedings to denaturalize him and, if successful, then render this no-longer-American to the Saudi authorities to do with as they think appropriate.