ACLU v. Mattis: Challenging the History of the Next Friend Doctrine
In late September 2017, reports emerged of a U.S. citizen and ISIS fighter being held in Iraq as an enemy combatant. Later coverage, supplemented by government filings, added more details to the story but there were still many questions left unanswered. In particular, the government refused to release basic information like the detainee’s name or the location of the facility where he’s being held. Apart from two meetings with members of the International Committee of the Red Cross (ICRC), the government had chosen to hold John Doe, the anonymous detainee, entirely incommunicado.[1]
On the basis of this incomplete information, the ACLU decided in early October to file a habeas petition in the D.C. District Court[2], ACLU v. Mattis. While the ACLU’s petition has resulted in access to the detainee, who has chosen to proceed with the ACLU as his counsel, the government aggressively litigated the question of standing, arguing that the ACLU did not meet the procedural requirements to sue on his behalf. Presiding Judge Chutkan rejected the government's argument in a December 23rd memorandum opinion,[3] which signals a significant step forward for the doctrine of next friend standing as well as a rejection of one of the most extreme possible interpretations of the relevant precedent.
The central problem for Doe is that as a U.S. citizen, he is constitutionally and statutorily entitled to challenge his detention, but as an enemy combatant held incommunicado overseas, he was unable to do so. These specific circumstances are deeply unusual, but the underlying problem is not; Congress and the courts have recognized the possibility that a person would not be able to exercise their rights themselves and so provide for a “next friend” to do so. Once appointed, the next friend can litigate on behalf of the incapacitated defendant and vindicate their due process protections. Family members often serve as next friends for incapacitated defendants, but since Doe had not been named, no family members could come forward. When the ACLU asked the D.C. District Court to serve as Doe’s next friend, they faced stiff opposition from the government.[4]
The requirements for next friend standing are set out most clearly by the U.S. Supreme Court’s opinion in Whitmore v. Arkansas, a 1990 case in which one death row inmate, Jonas Whitmore, sought to file a habeas petition on behalf of another inmate, Ronald Gene Simmons, who had expressly waived his right to appeal. Rejecting Whitmore’s appeal on behalf of a 7-2 majority of the Court, Justice Rehnquist set out a two-part test for next friend standing: a potential next friend must first explain why the original party is unable to file a lawsuit on their own and must be represented by a next friend at all. Second, and more significantly, the next friend must demonstrate that they are “truly dedicated to the best interests of the person on whose behalf he seeks to litigate.”[5] Only after satisfying these conditions can a party serve as a next friend.
This was not designed to be an easy bar to clear. Rehnquist cites a line of prior cases going back to the 1920s concerned about “intruders or uninvited meddlers, styling themselves next friends,” and a corresponding desire not to make next friend status too easy to obtain. In that context, Rehnquist references, without explicitly endorsing, the proposal that a next friend also be required to “have some significant relationship” with the real party.[6] Whitmore met none of these criteria, and it appears Rehnquist did not expect or intend for many other potential next friends to meet them either.
The Court’s focus on limiting next friend standing left the government in a good position to argue that the ACLU could not meet the requirements because they had not met the detainee (which, of course, the government was preventing them from doing). Because the ACLU could not meet him, their argument for next friend standing had to be more general; their brief had to make a more general argument that cited the organization’s mission and commitment “to upholding the civil liberties guaranteed by the Constitution” and their prior experience defending similarly-situated detainees. In response, the Department of Defense could point to a series of pre and post-Whitmore decisions by the Supreme Court and D.C. District Court, notably Lenhard v. Wolff, Rosenberg v. United States, and Al-Aulaqi v. Obama which argued that an organization’s interest in an issue does not qualify them for next friend standing, nor was an organization permitted to assume that a person wanted a habeas petition filed on their behalf.[7]
However, these specific references to the case law overstate the strength of the government’s position because they don’t account for the implications of ruling for them given the facts of this case. There are some very pressing concerns about extending next friend status to organizations without personal connections to the defendant, but, as the ACLU argued in their brief and Judge Chutkan emphasized in the memorandum opinion accompanying her order, it is likely that “absent the ACLU’s appearance as next friend, the detainee will have no other avenue through which to obtain the assistance he seeks, and to which he is constitutionally entitled.”[8] That is, the ACLU is the only possible next friend in this case and without them, the result would be deeply implausible and deeply troubling: the government would be able to frustrate a U.S. citizen’s habeas rights indefinitely simply by withholding information about their detention – in this case, all the barriers to next friend standing for the ACLU were created by the Department of Defense and they could resolve them whenever they chose to[9]. This would be a sea change in habeas jurisprudence far larger than any change made to next friend standing.
ACLU v. Mattis has already made its mark in next-friend jurisprudence and it will likely be an important case to watch. It promises to raise many interesting questions at the intersection of due process and the war on terror.
[1] Baldor, Lolita C. 2017. "Red Cross will soon see American IS fighter held in Iraq." AP News. 28 September; Williams, Katie Bo. 2017. "American being held as enemy combatant also has Saudi citizenship." The Hill. December 13.
[2] Petition for a Writ of Habeas Corpus, American Civil Liberties Union Foundation v. Mattis, Civil Action No 17-2069, *5-12 (DDC filed October 5, 2017).
[3] Memorandum Opinion, American Civil Liberties Union Foundation v. Mattis, Civil Action No 17-2069, *5-12 (DDC filed December 23, 2017).
[4] Respondent’s Motion to Dismiss and Response to Court’s Order, American Civil Liberties Union Foundation v. Mattis, Civil Action No 17-2069, *3-18 (DDC filed October 30, 2017).
[5] Whitmore v. Arkansas, 495 U.S. 149 (Rehnquist, C.J.).
[6] Whitmore v. Arkansas, 495 U.S. 149 (Rehnquist, C.J.).
[7] Respondent’s Motion to Dismiss and Response to Court’s Order, American Civil Liberties Union Foundation v. Mattis, Civil Action No 17-2069, *3-18 (DDC filed October 30, 2017).
[8] Memorandum Opinion, American Civil Liberties Union Foundation v. Mattis, Civil Action No 17-2069, *5-12 (DDC filed December 23, 2017).
[9] Memorandum Opinion, American Civil Liberties Union Foundation v. Mattis, Civil Action No 17-2069, *5-12 (DDC filed December 23, 2017).