U.S. officials say the detainee suspected of fighting for the Islamic State was turned over last September by the Syrian Democratic Forces. ISIS' flag is pictured being removed by the Syrian Democratic Forces in Tabqa on April 30, 2017. | Delil Souleiman/AFP/Getty Images Court upholds ruling blocking transfer of alleged ISIS backer to Saudi Arabia

A federal appeals court on Monday upheld a judge’s order that had blocked the U.S. military from sending to Saudi Arabia an American suspected of fighting for the Islamic State in Syria.

A three-judge panel of the D.C. Circuit split 2-1 in the decision, which endorses a lower-court ruling that the unidentified Saudi-U.S. dual citizen could not be forcibly sent to Saudi Arabia.


The panel’s majority and dissenting opinions were not immediately released, pending a review for sensitive information. A formal judgment that the court filed in the case, however, shows that the D.C. Circuit judges split along ideological lines. Judges Sri Srinivasan and Robert Wilkins, both appointees of President Barack Obama, voted to prevent the transfer. Judge Karen Henderson, a George H.W. Bush appointee, dissented.

The prisoner’s lawyers, from the American Civil Liberties Union, argued that it was unconstitutional to transfer the alleged ISIS fighter without some sort of treaty or standing diplomatic agreement.

However, Justice Department lawyers argued that delaying or rejecting the transfer would damage the ability of U.S. officials to negotiate prisoner transfers in the future.

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A department spokeswoman said on Monday that officials there were reviewing the decision.

“This individual’s alleged activities with ISIL implicate numerous national security, law enforcement, international relations and foreign policy concerns,“ said the spokewoman, Kerri Kupec, using an alternative acronym for the terrorist group. “Both domestic and international law confer on the U.S. military broad discretion over battlefield operations, including the transfer of individuals captured on overseas battlefields. We are reviewing the decision and considering our next steps.”

The ACLU endorsed the court’s opinion.

“The appeals court’s judgment vindicates due process, limits on executive authority and the protection of an American’s constitutional rights,” Jonathan Hafetz, the ACLU attorney who argued the issue before the court on April 27, said in a statement. “The president does not get a blank check to dispose of the liberty of U.S. citizens just because international relations or military actions are involved.”

U.S. officials say the detainee was turned over last September by the Syrian Democratic Forces, a faction in the country’s civil war whose stated goal is a secular and democratic Syria. Initial reports called the prisoner an ISIS fighter, but later court submissions were short on evidence that the individual had actually fought with ISIS. There were indications that he’d explored military tactics and was aligned with ISIS philosophy.

He also claimed to be a journalist, however, and was traveling with press credentials of dubious provenance .

U.S. District Court Judge Tanya Chutkan, who is also an Obama appointee, issued an order in January requiring the U.S. government to provide 72 hours’ notice before transferring the prisoner out of American custody in Iraq. Justice Department lawyers filed such a notice last month and were promptly confronted by a motion from the ACLU to block the transfer. Chutkan ultimately entered a preliminary injunction blocking the transfer.

