Scott Harman-Heath[*]

[Full text of this Article in PDF is available at this link]

Introduction

For nearly three months beginning in September 2017, the United States detained a U.S. citizen “unnamed, uncharged, and, despite his request, without access to counsel.”[1] The government asserted that John Doe was detained as an enemy combatant in Iraq and that no party had Article III standing to seek judicial review of Doe’s detention.[2] The American Civil Liberties Union (“ACLU”) contested the legality of Doe’s ongoing detention by seeking a writ of habeas corpus on Doe’s behalf, pursuant to a doctrinal exception called “next friend standing.”[3] The government countered that the ACLU was not John Doe’s “next friend” because it could not demonstrate the “significant relationship” to Doe required by Whitmore v. Arkansas.[4] The government’s claim was factually correct, but only because it had withheld Doe’s identity.

Doe remained anonymous until his release on October 28, 2018, after more than a year of detention, when the government identified him as Abdulrahman Ahmad Alsheikh.[5] The government’s implicit claim in ACLU v. Mattis was that it may detain a U.S. citizen without any prospect of access to judicial process. Such a position is particularly alarming both because of its novelty but also the likelihood of similar facts reoccurring—leading to more U.S. citizens detained in violation of their constitutional right to seek judicial review. As of February 2019, it was estimated that approximately 300 Americans had attempted to join ISIS.[6]  While ISIS’s territorial power has largely been curtailed,[7] the facts of ACLU v. Mattis could easily recur in future conflicts when an American travels abroad to join a non-state terrorist organization and is captured.

Detainees have long faced barriers to petitioning for relief on their own behalf.[8] Next friend standing allows a third party to seek a writ of habeas corpus on behalf of a detainee when the detainee cannot do so himself.[9] The doctrine is a longstanding exception to the general rule that to enjoy standing, parties must assert their own rights—not the rights of others.[10] In most cases, next friend standing is an adequate solution to a detainee’s inability to access the judicial process.[11] But in some military or quasi-military contexts—when a suspected enemy combatant is denied outside contact—the Whitmore v. Arkansas doctrine can create disquieting results.[12] That need not be the case, but virtually no scholarship has addressed what steps courts should take when these scenarios arise. This Article is the first piece of scholarship to roadmap how courts can faithfully apply Whitmore but nonetheless vindicate a detainee’s constitutional right to access habeas corpus.

This Article examines cases demonstrating the requirements that courts have placed on parties attempting to litigate as next friends. For example, courts have interpreted Whitmore as requiring a party invoking next friend standing to establish a significant connection to the detainee.[13] But establishing a significant connection to a detainee is, of course, impossible without knowing the detainee’s identity.[14] Incommunicado detention therefore allows the government to undermine the Constitution’s guarantee of access to habeas corpus. Absent a meaningful judicial check, the government would be heavily incentivized to hold every detainee incommunicado. This Article argues that the next friend standing doctrine was designed to preclude unconnected individuals from representing a detainee. But taken in isolation, Whitmore’s requirement of a significant connection between a detainee and a next friend means that if a detainee’s identity is withheld, no party can be identified to serve as a next friend—a doctrinal wrinkle the U.S. government attempted to exploit in ACLU v. Mattis.[15]

But Whitmore cannot be read in a vacuum. Federal courts are far from helpless when presented with facts like ACLU v. Mattis. Federal courts enjoy substantial latitude to ascertain their jurisdiction, a power that equips courts with all of the tools they need to remedy Whitmore’s doctrinal shortcomings. For instance, courts could require the government to identify a detainee’s potential next friend. Courts have this power because the existence of a putative next friend informs the court’s jurisdiction, and federal courts always have power to ascertain their own jurisdiction.[16] For example, by identifying and alerting a detainee’s immediate family, the government notifies parties who in all likelihood could properly challenge the detainee’s continuing detention. If a proper next friend, apprised of his right to challenge the detention, chooses not to proceed, that is his prerogative. The Court’s obligation is not to guarantee that an individual files a petition for a writ of habeas corpus, only that a proper individual could file such a petition. So long as some individual is able to file a petition, the Constitution’s guarantee of access to habeas corpus has been vindicated.

This Article proceeds in three parts. Part I describes the history and current requirements next friend standing imposes on purported next friends. Part II examines how courts have precluded third parties from litigating on behalf of a detainee, incommunicado or otherwise, if they do not satisfy the test outlined in Whitmore. Here, I argue that these cases demonstrate that Whitmore’s requirements are inflexible and, save for exceptionally rare circumstances, unavoidable. Part II concludes by examining ACLU v. Mattis. I argue that although the court arrived at the correct policy outcome—affording Doe the opportunity to challenge his detention—its legal reasoning, which is predicated entirely on Whitmore v. Arkansas, is flawed in several respects and therefore leaves the door open for future constructive suspensions of habeas corpus. Part III elaborates on one possible solution to prevent the constructive suspension of habeas corpus described above: requiring the government to identify and notify a potential next friend. Here, this Article examines why an easily administrable solution upholds a detainee’s rights without abandoning next friend standing jurisprudence­­­, and is thus the best course of action to prevent the constructive suspension of habeas corpus.

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[*] J.D., University of Virginia School of Law; B.A., McGill University. I would like to thank the editors of the Harvard National Security Journal for their insightful suggestions. I also wish to thank Steve Vladeck, Leah Litman, Spencer Ryan, Margaret Echols, Kendall Burchard, and Maggie Birkel for their helpful comments on various drafts of this piece. I am extremely grateful for Kimberly Ferzan, Rachel Harmon, Aditya Bamzai, Charles Barzun, and Josh Bowers’s enduring support of my scholarship. I must also express endless thanks to N.H., T.H. S.H., M.B., and C.J.C. for their endless support and patience in my pursuit of the archaic. However, my deepest gratitude is reserved for Ashley Deeks, who urged me to pursue this idea, read multiple drafts, and without whom this article would not exist.  All errors are my own.

[1] ACLU ex rel. Unnamed U.S. Citizen v. Mattis, 286 F. Supp. 3d 53, 54 (D.D.C. 2017) [hereinafter ACLU v. Mattis].

[2] Id. at 54–55.

[3] Id.

[4] 495 U.S. 149, 163–64 (1990).

[5] Charlie Savage et al., American ISIS Suspect Is Freed After Being Held More Than a Year, N.Y. Times (Oct. 29, 2018), https://www.nytimes.com/2018/10/29/us/politics/isis-john-doe-released-abdulrahman-alsheikh.html [https://perma.cc/Y3RU-7QQM].

[6] What Happens When Americans Who Joined ISIS Want To Come Home, NPR (Feb. 21, 2019), https://www.npr.org/2019/02/21/696769808/what-happens-when-americans-who-joined-isis-want-to-come-home [https://perma.cc/Q59L-ULD8].

[7] Timeline: The Rise, Spread, and Fall of the Islamic State, Wilson Center (Oct. 28, 2019), https://www.wilsoncenter.org/article/timeline-the-rise-spread-and-fall-the-islamic-state [https://perma.cc/CP78-W278].

[8] Whitmore v. Arkansas, 495 U.S. 149, 162 (1990).

[9] Id.

[10] See Singleton v. Wulff, 428 U.S. 106, 114–16 (1976); Whitmore, 495 U.S. at 162.

[11] See Hamdi v. Rumsfeld, 542 U.S. 507, 511 (2004); see also Kuman v. Obama, 725 F. Supp. 2d 72, 77 (D.D.C. 2010); Noori v. Obama, 664 F. Supp. 2d 116, 117–20 (D.D.C. 2009); Fenstermaker v. Bush, No. 05 Civ. 7468(RMB), 2007 WL 1705068, at *4–6 (S.D.N.Y. June 12, 2007); see generally Adem v. Bush, 425 F. Supp. 2d 7 (D.D.C. 2006) (discussing, at length, how next friend status works in the context of detainee litigation).

[12] See Whitmore, 495 U.S. at 162; Coal. of Clergy, Lawyers, & Professors v. Bush, 310 F.3d 1153, 1162 (9th Cir. 2002) [hereinafter Coal. of Clergy] (noting that some cases would present unworkable facts under Whitmore).

[13] Whitmore, 495 U.S. at 163–64.

[14] See Hamdi v. Rumsfeld, 294 F.3d 598 (4th Cir. 2002) [hereinafter Hamdi I]; Coal. of Clergy, 310 F.3d at 1161–63. In both cases the next friend claimant had never met the detainee. The courts rejected both actions.

[15] See, e.g., The Pentagon Has Detained a U.S. Citizen for More Than Two Months — and Said Little, Wash. Post (Nov. 16, 2017), https://www.washingtonpost.com/opinions/the-pentagon-has-detained-a-us-citizen-for-more-than-two-months–and-said-little/2017/11/16/4d4e5ec6-ad17-11e7-be94-fabb0f1e9ffb_story.html?utm_term=.43d6c967c924 [https://perma.cc/Z8NE-BJFT]; see also Steve Vladeck, The Increasingly Unsettling Indifference Toward the U.S. Citizen “Enemy Combatant”, Just Security (Oct. 4, 2017), https://www.justsecurity.org/45607/increasingly-unsettling-indifference-citizen-enemy-combatant/ [https://perma.cc/QE6C-ENLB].

[16] United States v. Ruiz, 536 U.S. 622, 628 (2002) (citing United States v. Mine Workers of Am., 330 U.S. 258, 291 (1947)).