CRS Legal Sidebar
Prepared for Members and
Committees of Congress
Military Enjoined from Transferring
American ISIS Suspect to Foreign Country—at
Least for Now
Jennifer K. Elsea
Legislative Attorney
June 20, 2018
In Doe v. Mattis, a case with potential ramifications regarding the authority to conduct military operations
against the Islamic State of Iraq and the Levant (ISIS), the U.S. Court of Appeals for the D.C. Circuit
(D.C. Circuit) upheld 2-1 the district court’s injunctions temporarily protecting “John Doe” from forcible
transfer to another country from Iraq, where he is currently being held by the U.S. military as a suspected
ISIS combatant. Doe, a dual U.S.-Saudi national who surrendered to Syrian Democratic Forces and was
subsequently transferred to U.S. custody, seeks to end his detention through a petition for a writ of habeas
corpus in the federal district court for the District of Columbia. The Department of Defense (DOD) seeks
to transfer him involuntarily to the custody of one of two countries (the names of which remain
classified). Doe asked the district court to prevent his transfer during the pendency of his litigation, but
DOD claimed the authority to transfer him as soon as diplomatic arrangements could be made. The
district court judge issued two orders, one requiring DOD to provide 72 hours’ notice to the court prior to
Doe’s transfer to another country and a second enjoining the government from transferring Doe, once the
government gave notice to the court of its intent to transfer him. DOD appealed both orders.
Doe’s habeas petition, filed on his behalf by the American Civil Liberties Union, contends that his
detention is unlawful because the military’s legal authority to detain enemy combatants does not
encompass ISIS within any authorization for use of military force. Additionally, he claims he is not an
ISIS combatant. The instant dispute concerns whether Doe has the right to litigate his habeas claim to the
merits or whether the government can essentially moot his claim for relief by transferring him to another
country with an interest in holding or prosecuting him.
The appellate court described the D.C. Circuit’s test for a preliminary injunction as a balancing of four
factors:
Congressional Research Service
7-5700
www.crs.gov
LSB10152
