In the months that followed, a federal court ruled against the administration numerous times, finding that John Doe must be given access to an attorney. It also blocked a U.S. government attempt to transfer him to Saudi custody. (The administration dropped its own bid to release him in Syria.)
Jonathan Hafetz, the lead attorney on Doe’s case, considers his client’s release a major victory.
“What the case reinforces is that the United States government cannot detain citizens without judicial review, without due process, and without being subjected to the rule of law,” he told me. “The government tried to set up a mini black hole where they could have a free hand in deciding a citizen’s fate.”
A Defense Department spokesperson said the case has resulted in no official policy change to detainee operations.
While Doe’s case is a rare instance of an American being swept into wartime detention by the U.S. government, there are a handful of precedents. Perhaps the most important of these is the case of Yaser Hamdi, an American citizen accused of fighting against the United States alongside the Taliban in Afghanistan. In the 2004 case Hamdi v. Rumsfeld, the Supreme Court decided the administration could indeed hold people, including U.S. citizens, as enemy combatants—entailing indefinite detention without charge—but had to let them challenge the basis for their detention.
As Vladeck pointed out, though, the Hamdi ruling spoke only to the specific circumstances of Hamdi’s own capture. It said nothing about people who weren’t captured on the Afghan battlefield.
Since then, the War on Terror has stretched on and morphed. And while the courts have weighed in on military detentions of American suspects accused of affiliation with al-Qaeda or the Taliban, it remains a matter of debate whether those precedents apply to the war on ISIS. The fact that the Doe case was settled without going forward means that question remains open, and it affects much more than the fate of just one man.
The flow of foreign fighters to the Islamic State at the group’s peak in 2014 and 2015 was an unprecedented global phenomenon. Conflicts in Afghanistan in the 1980s and Bosnia in the 1990s had drawn their own international cadres of jihadist fighters, but never in such numbers. In late 2015, the Soufan Group, a private intelligence firm, estimated that perhaps around 30,000 fighters had traveled to join ISIS and other extremist groups in Iraq and Syria.
Americans represented only a small number—then–FBI Director James Comey estimated in 2014 that there were about a dozen or so fighting alongside the group, out of more than 100 who had tried to join or who had been killed or arrested.
In the U.S.-led war that pushed ISIS from most of its territory, many thousands of foreign fighters have died. Thousands more have returned home, where they might either face charges or walk free. (Researchers at George Washington University’s Program on Extremism identified 12 Americans who returned to the United States, nine of whom were arrested.) Others have dispersed to wage guerrilla warfare in Syria and Iraq.