American Civil Liberties Union Foundation v. Mattis is a would-be habeas corpus petition brought by the ACLU Foundation on behalf of an unnamed American citizen whom the U.S. government has been holding in military detention in Iraq since September. (See here for earlier posts on this case, here for a Lawfare Podcast episode in which Ben and Steve discuss it, and pretty much every episode of the National Security Law Podcast in recent weeks as Steve and I have wrestled with it.) I’m writing this post in an effort to express my mounting concern with a specific aspect of the government’s emerging position in this case.

To be clear, I am not talking about the government’s position on the underlying merits. That is, I’m not talking about the government’s implicit claim that is has sufficient legal and factual bases to rely on military detention in this instance. For what it is worth, I think the government’s position on the notional legality of this detention is quite strong (though, obviously, it raises serious and unsettled questions), and I have no view at all on the factual situation (since I have so little information on which to rely).

Instead, I’m talking about something quite different: the government’s apparent position that it can prevent courts from addressing those very questions via habeas review simply by declining indefinitely to identify a citizen whom it has detained (or at least for as long as it wishes to explore other potential long-term disposition options for a citizen who is, all the while, held as an enemy combatant).

This claim contains a dangerous principle, and it should be rejected. But it must be rejected with nuance. Here’s what I mean:

1. Everyone agrees that the citizen detainee has the right to habeas review at some point

The government does not deny the general proposition that an American citizen has the right to pursue judicial review when held in military detention, even if the person was captured in a combat zone. So held the Supreme Court in 2004’s Hamdi v. Rumsfeld, a case which sure looks close to on-point for the present situation (a combat zone overseas; a citizen asserted to have been a fighter for a non-state enemy force; capture by U.S. allies; transfer to U.S. custody in theater; detention as an enemy combatant).

2. Review does not mean the government automatically loses

The Supreme Court in Hamdi did not just say that Yaser Hamdi had a due process right to challenge his detention. It also held that his detention would indeed be lawful if the government could in fact establish that he was what they claimed him to be: an arms-bearing Taliban fighter captured in Afghanistan at a time when conditions constituted a conventional state of armed conflict. Likewise, the Guantanamo habeas litigation has repeatedly produced lower court rulings approving of the legal and factual grounds for detention (though the government has not always prevailed in those cases). The present case could turn out differently, of course. Perhaps a court would find that the Islamic State is not within the scope of the 2001 Authorization for the Use of Military Force (AUMF), for example, or perhaps the government lacks evidence sufficient even to satisfy a preponderance standard. That’s rather the point, particularly for a citizen.

3. The right to review is too much at risk if the person’s identity is known only to the government and the government has sole discretion to delay disclosure indefinitely

This seems so obvious that it should not have to be explained. But let’s walk through it anyway.

A citizen in incommunicado detention cannot initiate a habeas petition on their own. Someone has to be able to do it for them, or else the right is no right at all. In order to establish standing to file a habeas petition on the citizen’s behalf, however, that someone needs authorization from the citizen or the citizen’s “next friend.” This is not possible unless one of two things occurs. Either the public must know who the citizen in question is (thus enabling a would-be counsel to identify a proper next-friend and seek authorization to litigate on the citizen’s behalf), or else the government must act in good faith as an intermediary transmitting the would-be counsel’s request to the citizen (or vice-versa). Failing those two conditions, no one can sustain a petition until the executive branch decides otherwise.

The executive branch cannot enjoy unreviewable discretion to make such a decision. If it did, then in theory it could elect not to make that decision at all, or at least not for a long period of time. This would amount to constructive suspension of the writ of habeas corpus.

4. A mechanism is necessary to ensure that no such constructive suspension occurs

To prevent constructive suspension through non-notification, there must be some mechanism to ensure reasonable steps are taken to determine whether a citizen held in military custody wants to assert his or her habeas rights. This does not mean that would-be attorneys must be allowed into an overseas combat zone in order to speak to would-be clients directly. As the ACLU itself concedes in its most recent filing, the task could be accomplished indirectly simply by having some specific, court-approved questions on the subject transmitted to the citizen (through whomever the government might wish to employ for that purpose).

5. The hard question is timing

The difficult question is: how soon after the citizen comes into U.S. military custody, in the context of an overseas armed conflict, must such a mechanism be employed?

No one is ever going to come up with a precise number of hours, days, or weeks that will please everyone. Nor will anyone be able to show that any particular deadline is required by the Constitution’s text, historical practice, or any other relevant source. We are stuck with no more (and no less) than general principles. On one hand, habeas cannot be constructively suspended. On the other hand, courts obviously also must take great care when touching upon military activities in an ongoing, overseas, armed conflict (indeed, as Marty Lederman reminds us in this excellent post, Justice O’Connor in Hamdi expressly noted that habeas rights in this setting do not attach immediately upon capture but only after the “determination is made to continue to hold” the citizen).

How to reconcile these mighty considerations? It seems to me it must boil down to something like this:

In the face of a request such as the ACLU’s here, the burden should be on the government to convince the court that, in the totality of the circumstances, there are specific, compelling grounds for some limited degree of further delay. The bar should be very high to begin with, and should grow higher with the passage of time. Even if the judge is persuaded, moreover, the period of delay should be kept brief, and the government should be obliged to return to court to make a fresh (and more difficult) showing that the delay should be extended any further.

6. What about the government’s argument in ACLU v. Mattis, to the effect that notification should at least wait until after the government has decided what disposition it has in mind for the citizen?

I was more than a bit surprised by this argument, particularly given that it was made after three months have gone by (and after statements from government officials to the effect that the Justice Department has tried but thusfar failed to assemble grounds to prosecute this particular person). Marty makes this point well in his post, but I cannot resist piling on here.

There is a sharp distinction between (1) deciding whether someone is in fact detainable as an enemy combatant in the first instance (and that you will in fact use that authority to detain the person for the time being) and (2) later deciding whether to stay with that model indefinitely or instead switch over to something else (like domestic prosecution, transfer to third-country custody, etc.). Here, the government months ago decided that it could and would employ military detention for the time being. It has spent several months exploring other options, to be sure, and leaks to the media suggest that it really would prefer to be able to just charge the guy in civilian court in the United States (but also that DOJ has had no luck gathering the degree of admissible evidence needed to proceed that way). We are past the O’Connor window of non-intervention, in other words. If particular circumstances—say, the progress of diplomatic negotiations aiming towards a transfer—genuinely warrant a degree of further delay, that should certainly be a factor in the court’s analysis. But it should be only a factor, not a dispositive consideration.

I’m more than happy to hear from readers why this approach might be wrong. Feel free to reach out. The issue seems unlikely to go away anytime soon, and there will be more action this week in ACLU v. Mattis itself.