The U.S. citizen who has been held for the past 13 weeks as an enemy combatant in Iraq also holds citizenship in Saudi Arabia, according to multiple sources familiar with the matter.
The Trump administration has withheld the identity of the detainee, known only as John Doe, while it figures out what to do with him. Syrian forces captured Doe in mid-September while he was apparently fighting with the Islamic State in Iraq and Syria. He was turned over to the U.S. military and has remained in legal limbo ever since.
A Justice Department lawyer told a federal judge late last month that the government is still in the “preliminary” phase of determining how to handle Doe’s case, which experts say has no exact legal precedent.
But the fact of Doe’s dual citizenship might make it more likely that the administration seeks to transfer him into Saudi custody — something it can only do only if there is no threat that the detainee in question will be tortured and will only do if Riyadh agrees to strict conditions.
In past transfer cases from the U.S. detention facility at Guantanamo Bay, for example, the government hammered out very specific agreements related to how the receiving country’s intelligence services would monitor the transferred individual.
The U.S. has sent detainees to Saudi Arabia in the past. Once there, they enter a government-run rehabilitation program for extremists that was started in the mid-2000s. The flagship site sits on a former resort property in Riyadh and boasts a swimming pool and art therapy for detainees referred to as “beneficiaries.”
But the future of that program is in some question under the new ruling authorities in Riyadh.
Transferring the detainee would also represent a reversal for President TrumpDonald TrumpYoungkin ad features mother who pushed to have 'Beloved' banned from son's curriculum White House rejects latest Trump claim of executive privilege Democrats say GOP lawmakers implicated in Jan. 6 should be expelled MORE, who criticized former President Obama in January for the transfer of a handful of Guantanamo detainees to Saudi Arabia in the waning days of that administration.
“There should be no further releases from Gitmo. These are extremely dangerous people and should not be allowed back onto the battlefield,” Trump tweeted at the time.
Spokespeople for the Defense and State departments declined to comment.
Other options for the Trump administration include putting Doe on trial in the civil court system, which is the preferred option for civil liberties groups like the American Civil Liberties Union. That group is waging a legal battle to represent the unnamed citizen as a so-called next friend.
But according to court filings in that case, an FBI clean team informed Doe of his right to counsel, but did not provide him with a lawyer — suggesting that a civil court proceeding is not imminent. One report from The Washington Post has suggested that the government does not believe it has a strong enough case to successfully prosecute Doe in the United States.
Some Republicans on Capitol Hill, including Sen. Lindsey GrahamLindsey Olin GrahamThune endorses Herschel Walker in Georgia Senate race Pennsylvania Republican becomes latest COVID-19 breakthrough case in Congress McCain: Ivanka Trump, Jared Kushner had 'no goddamn business' attending father's funeral MORE (S.C.), have called for American enemy combatants to be sent to Guantanamo Bay — something many legal experts on detainee issues say is a non-starter.
That leaves the transfer option, a sensitive diplomatic negotiation that Steve Vladeck, a national security professor at the University of Texas School of Law, compared to “a 21st century version of terrorism parole.”
“His second citizenship is going to be a lot more relevant to the ease of the diplomatic negotiation than any potential legal objection to his transfer,” he said. “It’s entirely possible that Doe’s second country of citizenship is perfectly willing to take him back, but not on terms that the U.S. government will agree to.”
The detainee dilemma comes at a time when the Trump administration is putting pressure on Riyadh over the escalating humanitarian crisis in Yemen. Broadly, the president has enjoyed a warmer relationship with Saudi Arabia than his predecessor — but U.S.-Saudi relations have taken place against the backdrop of a loaded history since 9/11, when 15 of the 19 hijackers hailed from the Gulf nation.
It also comes in the wake of seismic leadership shakeup in the kingdom. Mohammed bin Nayef, the kingdom’s former crown prince, who founded the rehabilitation center, was supplanted in June by his cousin, Mohammed bin Salman, who has engaged in a broad anti-corruption campaign derided by many as a purge.
Beyond the diplomatic considerations, the Doe case is also one of the first known opportunities for the Trump administration to signal how it will handle American citizens captured fighting for ISIS in an active combat zone — an unsettled part of U.S. law that has vexed every administration since 9/11.
Although the law is clearer when an American is captured fighting in an active combat theater, rather than carrying out a “lone wolf” attack in the United States, U.S. policy on American enemy combatants has largely been decided by narrow, individual court rulings.
At least rhetorically, Trump has signaled that he will treat the war on terror as a rebuke to the policies of his predecessor. He has called in the past for filling up Guantanamo with “bad dudes.”
But so far, the current administration has more or less followed the model embraced by Obama, known as the "hybrid option."
“They’ve been slow to deal with this problem,” Graham said Wednesday. “They’re struggling to break away from the Obama model to turn the war into a crime.”
Under that model, an individual is detained in military custody for an unspecified period of time and interrogated. Then an FBI clean team is brought in, which reads the individual their Miranda rights and kick-starts a civilian prosecution. Gitmo proponents, like Graham, say that approach stymies needed intelligence gathering on individuals who are acting as soldiers of ISIS.
Further complicating the question of Doe's detention is that, in order to classify an individual as an enemy combatant in the first place, the government must be able to prove that the detainee is a fighter for an enemy force against which the U.S. is in a state of armed conflict.
Both the Trump and Obama administrations have claimed that ISIS is an “associated force” covered by the military authorization that Congress passed in 2001, after 9/11.
But the courts have not yet weighed in on that claim, and both conservative and liberal legal analysts say the government is on risky legal ground.
“When you run into somebody on the battlefield, we need a game plan,” Graham said. “Holding him in Iraq is a not a long-term solution — I think they’re still figuring out what they’re going to do.”