Amicus Curiae Brief — A. A., et al., Petitioners v. Joshua Mast, et al.

Supreme Court briefSep 16, 2026

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No. 26-164

In the Supreme Court of the United States

A.A. AND F.A., PETITIONERS

JOSHUA MAST AND STEPHANIE MAST,

RESPONDENTS

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF VIRGINIA

BRIEF OF JOHN R. BASS, FORMER U.S. AMBASSADOR

TO AFGHANISTAN; DONNA A. WELTON, FORMER

ASSISTANT CHIEF OF MISSION AT THE U.S. EMBASSY

IN KABUL; AND LIEUTENANT COLONEL ROSEMARY M.

REED, U.S. ARMY (RET.), AS AMICI CURIAE IN SUPPORT

OF PETITIONERS

JOSHUA M. WESNESKI

Counsel of Record

CRYSTAL L. WEEKS

LEAH D ESKINS

YOUSEF ZIYADI

WEIL , GOTSHAL & MANGES LLP

2001 M Street NW

Suite 600

Washington, DC 20036

(202) 682-7000

joshua.wesneski@weil.com

TABLE OF CONTENTS

Interest of Amici Curiae .................................................. 1

Summary of Argument .................................................... 4

Argument .......................................................................... 6

I. A lack of notice deprived the judicial body of a

complete and accurate record ................................ 6

A. Officials with access to information on

Baby Doe’s status were never notified of

the adoption proceedings .................................. 6

B. Adequate notice could have corrected the

record ................................................................ 10

II. The ex parte orders bypassed—and were used

to undo—the authorized reunification process .. 12

A. The reunification decision reflected

authorized military, diplomatic, and

interagency judgment ..................................... 13

B. Mast had no authority to speak for the

United States or to supplant the

authorized process ........................................... 15

III. The decision below undermines U.S.

credibility and threatens recurring harm far

beyond this case..................................................... 18

A. The result here undermines confidence in

U.S. commitments ........................................... 18

B. The same procedural mechanism can

disrupt future overseas operations ................ 20

Conclusion ....................................................................... 22

(i)

TABLE OF AUTHORITIES

Cases

Page(s)

Abbott v. Abbott,

560 U.S. 1 (2010) .................................................. 20

Armstrong v. Manzo,

380 U.S. 545 (1965) ................................................ 6

Chappell v. Wallace,

462 U.S. 296 (1983) .............................................. 16

City of New York v. N.Y., New Haven &

Hartford R.R. Co.,

344 U.S. 293 (1953) ................................................ 8

Lankford v. Idaho,

500 U.S. 110 (1991) ................................................ 9

Lassiter v. Dep’t of Soc. Servs.,

452 U.S. 18 (1981) .................................................. 6

Mennonite Bd. of Missions v. Adams,

462 U.S. 791 (1983) ................................................ 8

Mullane v. Cent. Hanover Bank & Tr.

Co.,

339 U.S. 306 (1950) ................................................ 8

Parker v. Levy,

417 U.S. 733 (1974) .............................................. 16

Statutes & Rules

28 U.S.C. 516-517 ........................................................ 8

Ariz. R. Fam. Law P. 48 ............................................ 21

Cal. R. Ct. 5.151(a)-(b) and (d)-(e)............................. 21

Fed. R. Civ. P. 4(i) ....................................................... 8

(ii)

Treaties and International Agreements

Agreement for Bringing Peace to

Afghanistan Between the Islamic

Emirate of Afghanistan Which Is

Not Recognized by the United States

as a State and Is Known as the

Taliban and the United States of

America, Feb. 29, 2020, https://20172021.state.gov/wpcontent/uploads/2020/02/SignedAgreement-02292020.pdf ..................................... 14

Joint Declaration Between the Islamic

Republic of Afghanistan and the

United States of America for

Bringing Peace to Afghanistan, Afg.U.S., Feb. 29, 2020, https://20172021.state.gov/wpcontent/uploads/2020/02/02.29.20US-Afghanistan-JointDeclaration.pdf ..................................................... 15

Security and Defense Cooperation

Agreement Between the United

States of America and the Islamic

Republic of Afghanistan, Afg.-U.S.,

art. 3.1, Sept. 30, 2014, T.I.A.S. No.

15-101 ................................................................... 13

Miscellaneous

Angela Parady, Soldiers Help Build

Community Relations in Kosovo,

U.S. Army (Nov. 2, 2012), https://tinyurl.com/2enf7n72 ............................................. 20

(iii)

Ctr. for Army Lessons Learned, U.S.

Army, Commander and Staff Guide

to Multinational Interoperability

(2020),

https://api.army.mil/e2/c/downloads/

2023/01/31/3dadfaa2/20-12.pdf ............................ 18

Erin Lasley, 62nd AW Remembers

Operations Babylift, New Life, 62d

Airlift Wing History Office (May 27,

2020), https://tinyurl.com/dz6crt9h ..................... 20

Ernesto Londoño, Many Insider Attacks

in Afghanistan Stem from Personal

Motives, Data Suggest, Wash. Post

(Dec. 19, 2012),

https://www.washingtonpost.com/wo

rld/national-security/many-insiderattacks-in-afghanistan-stem-frompersonal-motives-datasuggest/2012/12/18/86e515ea-495711e2-ad54-580638ede391_story.html.................. 19

Hague Conference on Private Int’l Law,

Information Note—Children

Deprived of Their Family

Environment Due to the Armed

Conflict in Ukraine: Cross-Border

Protection and Intercountry Adoption

(Mar. 16, 2022),

https://assets.hcch.net/docs/0f9c08e975d0-4497-8ca0-12c595aa6845.pdf ..................... 14

Joe McFadden, Hurlburt Field Medics

Continue to Save Lives in Haiti, U.S.

Air Force (Jan. 26, 2010), https://tinyurl.com/48mz356d ............................................ 20

(iv)

Peter F. Cowhey, Domestic Institutions

and the Credibility of International

Commitments: Japan and the United

States, 47 Int’l Org. 299 (1993) ............................ 18

Rozina Ali, How Did This Man Think

He Had the Right to Adopt This

Baby?, N.Y. Times Mag. (Nov. 10,

2022),

https://www.nytimes.com/2022/11/10

/magazine/afghanistan-orphan-babyl.html .................................................................... 18

Robert Vanderpool, Looking Back: Operation RESTORE HOPE—OSI Operations in Somalia, Office of Special

Investigations (Dec. 21, 2022),

https://tinyurl.com/jnh9f534 ................................ 21

Steven Williams, ISAF Docs Struggle to

Save Scores of Children in Afghanistan, U.S. Marine Corps (July 22,

2010), https://tinyurl.com/5n9y7yus .................... 20

U.S. Dep’t of Def., Law of War Manual

§ 17.10.1 (June 2015, updated July

2023) ..................................................................... 13

U.S. Dep’t of State, Department of State

Advances Reunification of

Unaccompanied Afghan Minors with

Updated Parolee Form (Oct. 3, 2023),

https://tinyurl.com/4e9uvzup ............................... 21

U.S. Marine Corps, Command and

Control 2-25 (Marine Corps

Doctrinal Publication 6, 1996) ............................. 16

(v)

U.S. Marine Corps, Marine Security

Guard’s Story of Seoul During

Beginning of Korean War (Oct. 14,

2015), https://tinyurl.com/3znawbyu ................... 21

(vi)

In the Supreme Court of the United States

NO. 26-164

A.A. AND F.A., PETITIONERS

JOSHUA MAST AND STEPHANIE MAST,

RESPONDENTS

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF VIRGINIA

BRIEF OF JOHN R. BASS, FORMER U.S. AMBASSADOR

TO AFGHANISTAN; DONNA A. WELTON, FORMER

ASSISTANT CHIEF OF MISSION AT THE U.S. EMBASSY IN

KABUL; AND LIEUTENANT COLONEL ROSEMARY M.

REED, U.S. ARMY (RET.), AS AMICI CURIAE IN SUPPORT

OF PETITIONERS

INTEREST OF AMICI CURIAE1

Ambassador John R. Bass served as United States

Ambassador to Afghanistan from December 2017 to

January 2020. As the President’s personal representative to the Afghan government, Ambassador Bass

1 Counsel provided respondents notice of amici curiae’s intention

to file this brief at least 10 days prior to the due date. No counsel for

a party authored this brief in whole or in part, and no counsel or

party made a monetary contribution intended to fund the preparation or submission of this brief. No person other than amici curiae

or their counsel made a monetary contribution to its preparation or

submission.

(1)

oversaw and approved all U.S. government operations

and actions in-country other than U.S. military operations under the commander of U.S. forces. He led the

country team, comprising the U.S. government departments and agencies working in-country during Baby

Doe’s recovery, the initial family-tracing effort, and the

entry of the November 2019 Virginia custody and interlocutory adoption orders. His service in Afghanistan, together with his prior assignments as Ambassador to

Turkey and Georgia and as Executive Secretary of the

Department of State, and his subsequent assignments

as Under Secretary of State for Management and Acting

Under Secretary of State for Political Affairs, gives him

firsthand understanding of how the United States coordinates across agencies, engages host governments, and

addresses sensitive matters implicating foreign sovereignty, U.S. military operations, and children separated

from their families abroad.

Ambassador Donna A. Welton served as Assistant

Chief of Mission (ACOM) at the U.S. Embassy in Kabul

from August 2019 to August 2020. She later served as

U.S. Ambassador to Timor-Leste and held other senior

diplomatic and defense-policy assignments, including as

Deputy Chief of Mission and Chargé d’Affaires in Finland, Acting Deputy Assistant Secretary for Programs

and Operations in the Department of State’s Bureau of

Political-Military Affairs, and Acting Director for Southeast Asia in the Office of the Secretary of Defense (Policy). As ACOM in Kabul, Ambassador Welton participated directly in the diplomatic and interagency process

concerning Baby Doe’s care and reunification. Ambassador Welton was the lead representative from the State

Department liaising with Afghanistan’s Ministry of Labor and Social Affairs (MOLSA), the International

Committee of the Red Cross (ICRC), and U.S. military

officials regarding the disposition of Baby Doe.

Lieutenant Colonel (LTC) Rosemary M. Reed, U.S.

Army (Ret.), led the U.S. Forces-Afghanistan J9 civilmilitary operations section from July 2019 through

June 2020. In Baby Doe’s case, LTC Reed served as the

Department of Defense’s primary point of contact with

MOLSA, the ICRC, the U.S. Embassy, and military

components working to locate Baby Doe’s family and arrange interim care. She remained directly involved in

the interagency process throughout Baby Doe’s time in

Defense Department custody and witnessed her February 2020 transfer to MOLSA for family reunification.2

Amici have a strong interest in ensuring that statecourt proceedings do not disrupt U.S. military and diplomatic operations, undermine commitments to foreign

governments made through official U.S. channels, or

impair efforts to reunify children separated from their

families abroad.3 Drawing on their respective roles in

these events and decades of public service, amici file this

brief to explain the serious consequences that followed

because the U.S. officials responsible for Baby Doe’s care

and reunification received neither timely nor meaningful notice of the Virginia proceedings. In their judgment,

the procedural mechanism through which the extraordinary events of this case were allowed to unfold is

2 Ambassador Welton and LTC Reed submitted declarations in the

proceedings below describing their respective personal involvement

in Baby Doe’s care and reunification. Pet. App. 196a-202a, 281a88a.

3 Amici appear solely in their personal capacities. They do not

speak for the United States, the Departments of State or Defense,

the U.S. Army, or NATO.

repeatable and presents a recurring threat to U.S. interests.

SUMMARY OF ARGUMENT

Amici offer the firsthand perspective of U.S. officials

who directed or implemented the family-reunification

process at the center of this case. They agree with the

factual account set out in the United States’ amicus

brief to the Supreme Court of Virginia, Pet. App. 136a78a, because they lived it.4 They know firsthand why

U.S. officials decided to transfer Baby Doe to Afghan officials for reunification, and what information the Virginia court lacked when it entered the initial custody

and adoption orders without notice to the United States,

which then had physical custody of the child.

That experience gives amici a unique perspective on

the consequences of the decision below. When U.S.

forces recover a child during an armed conflict, decisions

concerning the child’s care and placement implicate military operations, host-country sovereignty, and diplomacy between national governments. Timely and meaningful notice to the United States and those actually caring for the child is therefore essential before a court enters an order altering the child’s legal status. Without

it, courts lack the information they need, and responsible officials cannot protect the sovereign, operational,

and humanitarian interests entrusted to them. No such

notice was provided here.

The decision below warrants review for three reasons.

4 Following a change in administrations, the United States with-

drew the brief. Pet. App. 305a. Its withdrawal letter identified no

factual error in the brief.

First, the absence of notice left the courts with an incomplete and inaccurate factual record. The Masts obtained the initial custody and adoption orders through

material misrepresentations and omissions concerning

Baby Doe’s status, family, and Afghanistan’s jurisdiction. Had responsible U.S. officials—including amici—

received notice, they could have corrected the record before the courts acted.

Second, the ex parte orders bypassed—and were later

used to undo—the United States’ military and diplomatic process. That process reflected coordination

among U.S. military and diplomatic officials, the Afghan government, and the ICRC. Mast had no authority

to act for the United States or to displace that interagency decision through private litigation. Yet he obtained an adoption order without disclosing the reunification decision or the fact that petitioners were raising

Baby Doe, and later used that order to separate her from

petitioners after inducing them to travel to the United

States through emergency evacuation channels. Pet. 1012; Pet. App. 146a-47a.

Third, the decision threatens harm beyond this case.

By condoning an order used to undo an official U.S.-Afghan reunification process, the decision undermines

confidence in commitments made through official diplomatic channels and weakens the Nation’s ability to insist on reciprocal safeguards abroad. It also leaves open

a repeatable procedural path by which private litigants

can disrupt future military, diplomatic, and humanitarian operations without notice to responsible officials or

the child’s caretakers.

The petition should be granted.

ARGUMENT

A Lack of Notice Deprived the Judicial Body of a

Complete and Accurate Record

Notice is the means by which decisive facts are subjected to adversarial testing before a court acts. That

safeguard is especially important in proceedings that

determine a child’s custody or permanently alter her legal status. See Lassiter v. Dep’t of Soc. Servs., 452 U.S.

18, 28 (1981); Armstrong v. Manzo, 380 U.S. 545, 550

(1965). Without adequate notice, the facts offered by an

interested party are never vetted and may, in fact, be

materially misrepresented (or simply false). That is

what happened here.

A. Officials With Access to Information on Baby Doe’s

Status Were Never Notified of the Adoption

Proceedings

1. When the initial custody and interlocutory adoption orders issued, the Defense Department had physical custody of Baby Doe. U.S. forces had recovered her

from the battlefield in September 2019 and subsequently brought her to Bagram Airfield for treatment.

During that period, amicus LTC Reed’s office—the “J9”

civil-military operations section—coordinated the military command’s work concerning Baby Doe’s care and

reunification with the U.S. Embassy, the Afghan government (primarily MOLSA), the ICRC, and other organizations. As the Defense Department’s principal

point of contact for family tracing and interim care, LTC

Reed kept senior military and Embassy officials apprised of the child’s condition and was best positioned to

provide current information about Baby Doe’s status.

Pet. App. 281a-84a. In practical terms, LTC Reed was

the appropriate official to consult for the most up-todate information about Baby Doe. Ibid.

On the diplomatic side, Ambassador Bass, as Chief

of Mission, led the Embassy and the interagency country team responsible for U.S. civilian operations in Afghanistan during this period. This included leading U.S.

government engagement with the government of Afghanistan, the United Nations, and other governments

to mitigate the impact of unintended consequences—including civilian casualties—stemming from U.S. military operations. He assigned Ambassador Welton to

lead the Embassy’s coordination with Afghan authorities and U.S. military counterparts (including LTC

Reed) as the family tracing unfolded. In that role, Ambassador Welton helped ensure that the Embassy understood MOLSA’s child-protection responsibilities,

monitored the information MOLSA and the ICRC developed about Baby Doe’s family, and elevated Afghanistan’s formal request for transfer to senior State Department and military officials. Pet. App. 196a-202a. As a

result, any meaningful inquiry into Baby Doe’s status,

Afghanistan’s position, or the ongoing family-tracing

process should have included Ambassador Welton.

By October 2019, potential relatives from the area

where Baby Doe was found had contacted the ICRC and

were being vetted. Pet. App. 286a-87a. At an October 23

meeting called by Ambassador Welton and attended by

representatives of the military command, the U.S. Embassy, MOLSA, and the ICRC, the participants agreed

that the family trace would continue and that Baby Doe

would remain in military care while it did. Ibid. Just

days later, Mast sought custody of Baby Doe in Virginia

state court.

Although Mast had attended the October 23, 2019

meeting and was therefore aware that the United States

was in physical custody of Baby Doe and that family

tracing was underway, he did not provide the United

States with notice of the proceedings, including the petition, a hearing date, or an opportunity to respond. Pet.

6-7; Pet. App. 141a-43a.

2. Due process requires notice “reasonably calculated, under all the circumstances, to apprise interested

parties of the pendency of the action and afford them an

opportunity to present their objections.” Mullane v. Cent.

Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950) (emphasis added). General awareness of a related matter is

insufficient. See City of New York v. N.Y., New Haven &

Hartford R.R. Co., 344 U.S. 293, 296-97 (1953); Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 800 (1983).

The Masts have argued at times that some federal employees may have heard about the pending adoption

proceedings in bits and pieces prior to December 2020

when the final adoption order issued. See Pet. App. 175a

n.9, 308a, 312a, 316a. But none of those communications apprised the individuals or officers actually responsible for Baby Doe’s well-being of a pending custody

or adoption proceeding in Virginia.

The distinction between fragmented awareness and

formal notice has particular force when the entity to be

notified is the United States. Only authorized officials

can formulate and present the Government’s position in

court, cf. 28 U.S.C. 516-517, and there are clear rules

governing how to provide notice, see Fed. R. Civ. P. 4(i).

Adherence to proper procedures is crucial. In amici’s experience, military commands and diplomatic missions

assign responsibility for inquiries related to judicial or

administrative proceedings so that officials empowered

to act can assemble the facts, coordinate affected agencies, and authorize a response. An officer in a different

military unit or State Department office who by happenstance learns some information about an issue affecting

an operational or diplomatic interest of the United

States does not acquire authority to decide whether the

United States should appear or to speak for a military

command, the Chief of Mission, the Departments of

State and Defense, or the United States. Nor is there

any expectation that such an officer will even recognize

the political or diplomatic implications of the proceeding

such that they would escalate the matter to the appropriate officers.

Because of this, the communications the Masts have

cited as evidence of notice to the United States are demonstrably insufficient. On November 7, 2019—the day

after the custody order issued—Mast emailed a military

attorney about the order. Pet. App. 142a. Not only did

Mast fail to communicate with someone authorized to

act on the information, he also did not provide the petition or hearing notice. More crucially, Mast represented

that the order did not affect the Afghan government’s

decision and would matter only if Afghanistan later

waived jurisdiction over Baby Doe. Ibid. Thus, the email

did not merely fail to alert the United States that the

order would later be used to interfere with the reunification process; it affirmatively conveyed the opposite.

Cf. Lankford v. Idaho, 500 U.S. 110, 122-27 (1991) (holding that earlier notice that a death sentence was legally

available was inadequate after the State’s formal representation that it would not recommend that sentence).

On November 12—after both November orders had

issued—the Embassy’s Consul General circulated an inquiry based on information from U.S. Citizenship and

Immigration Services suggesting that a U.S. court had

issued a custody order. Pet. App. 287a. LTC Reed received that inquiry and responded that she had been

“unaware of any such custody order.” Ibid. A U.S.

Forces-Afghanistan legal officer with general awareness of the order described it as contingent on an unsuccessful family trace and an Afghan waiver. Pet. App.

287a-88a. Neither communication disclosed that an interlocutory adoption order had already issued.

In February 2020, the Masts sued the United States

to block the transfer of Baby Doe. Pet. App. 113a, 143a,

307a. The United States received notice of that lawsuit

and participated in the proceeding. But even then, the

Masts concealed the truth. The Masts disclosed only the

custody order from November 6, 2019, not the later interlocutory adoption order from November 10, 2019. Indeed, they told the district court that they did not intend

to adopt Baby Doe—another representation that would

ultimately be proven false. Pet. 8-9; Pet. App. 136a,

143a-44a, 307a-22a. Tellingly, the federal district court

concluded that the Defense Department “should have

been formally served with and provided notice” of the

custody proceeding and, on that basis, denied the Masts

any relief. Pet. App. 322a-23a.

B. Adequate Notice Could Have Corrected the Record

The failure to provide notice to the United States

prevented amici and others with access to the truth

from correcting the unambiguously false representations made by the Masts to the Virginia court.

Specifically, in November 2019, the Masts represented to the Virginia court that Baby Doe was a stateless orphan whose living relatives had not been located;

that the Afghan government had declined custody and

would waive jurisdiction “in a matter of days”; that they

exercised physical care and custody over her; and that

urgent medical needs required immediate adoption-related relief. Pet. App. 112a-13a, 141a-43a, 182a-86a.

Every one of those representations was false. Amici

knew firsthand that before November 2019, Baby Doe’s

next of kin had already contacted the ICRC; the Afghan

government had never waived jurisdiction or expressed

an intent to do so; the Masts at that point had never had

physical custody of Baby Doe; and U.S. medical personnel had concluded Baby Doe was “healthy and not in

need of continuous medical care.” Pet. App. 141a-43a,

283a-87a.

The custody court also purported to rely on “[m]ilitary documents” produced by the Masts. Pet. App. 142a

n.3. The United States later explained that the documents were not authorized for use in the proceedings,

were not authenticated, and did not represent the Federal Government’s position. Ibid. Again, though, the

United States had no opportunity to clarify that point

while the custody proceedings were pending.

By the time of the December 2020 final-adoption proceeding, the facts were even further from what the

Masts were representing. By then, the Afghan government had identified and verified Baby Doe’s next of kin,

affirmatively asserted jurisdiction, granted custody under Afghan law, and formally requested her transfer.

Pet. App. 139a-45a, 196a-202a, 281a-88a. After consultation among senior State and Defense officials, the

United States honored that request, and petitioners had

been raising Baby Doe for approximately nine months.

Pet. App. 113a-14a, 139a-41a, 145a-46a, 199a-202a. By

then, the district court had also denied the Masts’ attempt to block the transfer, noting that Afghanistan had

not waived jurisdiction and that the Defense

Department should have received notice of the custody

proceeding. Pet. App. 113a-14a, 307a-22a.

The Masts’ failure to provide notice to the United

States and the responsible officers deprived the Virginia

court of the opportunity to learn the true facts. The final

order relied on recommendations from the local department of social services and the guardian ad litem, even

though neither the department’s representatives nor

the guardian ad litem had met Baby Doe. Pet. App.

114a. It repeated the earlier findings that Baby Doe was

“orphaned,” “stateless,” and of “[u]nknown” nationality,

and declared that no further consent or notice was required. Pet. App. 187a-91a. Years later, when apprised

of the truth, the judge who entered the final order confirmed that the undisclosed facts went to “the very foundation of this court taking any action, at all.” Pet. App.

207a. With “nobody on the other side,” he had understood the case to involve “an orphan with no family” in

severe medical need. Pet. App. 211a-12a.

The lack of adequate notice to the United States

therefore resulted in a completely inaccurate factual

record that irreparably tainted every aspect of the custody and adoption proceedings. This case is a paradigmatic example of why due process requires a minimum

level of notice to interested parties.

II.

The Ex Parte Orders Bypassed—and Were Used to

Undo—the Authorized Reunification Process

The inaccurate factual record described above did

more than produce ex parte orders. It enabled a service

member acting in his private capacity—without institutional authority and contrary to his command’s express

direction—to bypass and ultimately undo the authorized military, diplomatic, and interagency process that

had reunited Baby Doe with her Afghan family. By enabling the Virginia adoption order to stand, the decision

below effectively condones the Masts’ conduct, thus permitting state-court orders obtained without notice to

displace the United States’ considered judgment in a

sensitive foreign-affairs matter.

A. The Reunification Decision Reflected Authorized

Military, Diplomatic, and Interagency Judgment

After the family-tracing process succeeded, the State

Department, in consultation with the Department of

Defense, determined that the proper course was to comply with MOLSA’s request and transfer Baby Doe to the

next of kin whom MOLSA had located. Pet. App. 200a.

That decision was shared in an official communication

to the U.S. Embassy in Kabul from Secretary Pompeo

directing the transfer on February 25, 2020. Pet. App.

201a. The cable observed that MOLSA had concluded

Baby Doe was an Afghan citizen and that Afghanistan

had not waived jurisdiction over the child. Pet. App.

201a-02a. Two days later, on February 27, 2020, both

LTC Reed and Ambassador Welton witnessed Baby

Doe’s transfer to the care of two MOLSA representatives who then reunited her with her family. Ibid.

That process and ultimate judgment were consistent

with the legal and policy framework governing U.S. operations in Afghanistan. The Defense Department’s

Law of War Manual directs that “[a]ll appropriate steps

shall be taken to facilitate the reunion of families temporarily separated” by armed conflict. U.S. Dep’t of Def.,

Law of War Manual § 17.10.1 (June 2015, updated July

2023). The bilateral security agreement then in force between the United States and Afghanistan likewise committed U.S. forces to “respect the Constitution and laws

of Afghanistan.” Security and Defense Cooperation

Agreement Between the United States of America and

the Islamic Republic of Afghanistan, Afg.-U.S., art. 3.1,

Sept. 30, 2014, T.I.A.S. No. 15-101. Those commitments

align with the broader international-law framework

governing children separated from their families during

conflict, which prioritizes protection, family tracing, and

respect for the child’s home-country authorities over

unilateral private action. See, e.g., Hague Conference on

Private International Law, Information Note—Children

Deprived of Their Family Environment Due to the

Armed Conflict in Ukraine: Cross-Border Protection and

Intercountry Adoption (Mar. 16, 2022), https://assets.hcch.net/docs/0f9c08e9-75d0-4497-8ca012c595aa6845.pdf (“[Armed conflict] should not be used

as a justification for expediting intercountry adoptions,

or for circumventing or disregarding international

standards and essential safeguards for safe adoption.”).

The reunification decision also served important diplomatic interests. The State Department concluded that

honoring Afghanistan’s request would “properly recognize Afghanistan’s sovereignty” and “avoid any perception that the U.S. Government was holding an Afghan

child against the will of her extended family and the

Government of Afghanistan.” Pet. App. 140a-41a, 200a01a. The transfer occurred just two days before the

United States signed the Doha agreement concerning

the withdrawal of U.S. and allied forces and a parallel

joint declaration with the Afghan government concerning the peace process.5 At that sensitive juncture,

5 See Agreement for Bringing Peace to Afghanistan Between the

Islamic Emirate of Afghanistan Which Is Not Recognized by the

United States as a State and Is Known as the Taliban and the

United States of America, Feb. 29, 2020, https://20172021.state.gov/wp-content/uploads/2020/02/Signed-Agreement-

preserving confidence in commitments made through

official U.S. channels—and avoiding the very perception

the State Department had identified—was especially

important for two overarching reasons.

First, it was critical to the protection of thousands of

U.S. military service members, contractors, and other

U.S. government personnel serving in Afghanistan from

retribution by members of the Afghan security forces if

the latter understood, or misperceived, the U.S. to be abducting Afghan children from their lawful families.

Second, it was vital to reinforcing the surety of U.S.

government commitments to the Afghan government

amid sensitive negotiations to finalize parallel understandings between the United States and the Taliban

(to enable the departure of all U.S. military forces from

Afghanistan) and between the United States and the Afghan government (to sustain security and civilian assistance essential to the government’s viability following

the envisioned departure of U.S. forces).

The ex parte orders bypassed that institutional judgment.

B. Mast Had No Authority to Speak for the United States

or to Supplant the Authorized Process

In amici’s experience, military commands and diplomatic missions depend on preserving the distinction between private conviction and institutional authority. Access to information, participation in deliberations, or

strongly held views do not confer authority to decide for

02292020.pdf; see also Joint Declaration Between the Islamic Republic of Afghanistan and the United States of America for Bringing

Peace to Afghanistan, Afg.-U.S., Feb. 29, 2020, https://20172021.state.gov/wp-content/uploads/2020/02/02.29.20-US-Afghanistan-Joint-Declaration.pdf.

the institution, commit it to a course of action, or speak

in its name.

That distinction is embedded in military structure.

This Court has recognized the military’s “hierarchical

structure of discipline and obedience to command.”

Chappell v. Wallace, 462 U.S. 296, 300 (1983); see also

Parker v. Levy, 417 U.S. 733, 743 (1974). Marine Corps

doctrine similarly explains that the chain of command

“fixes authority and responsibility at each level while at

the same time distributing them broadly throughout the

force; each commander has designated authority and responsibility in a given sphere.” U.S. Marine Corps, Command and Control 2-25 (Marine Corps Doctrinal Publication 6, 1996), as amended by Change 1 (Apr. 4, 2018).

These principles channel initiative through assigned

roles and fix responsibility for institutional decisions.

Mast had no authority under the chain of command

or the body of law and regulations governing U.S. diplomatic and consular operations to intervene and decide

Baby Doe’s fate. He encountered Baby Doe during a

brief, temporary assignment at Bagram Airfield and attended the October 23 meeting. Pet. App. 111a, 141a. He

had no command responsibility for her care or transfer,

no assigned role in the diplomatic consultations that followed, and no authority to formulate or officially communicate the position of the Defense Department, the

State Department, or the United States. Pet. 5-7; Pet.

App. 111a-12a, 141a.

Mast’s command was explicit about his lack of authority. Shortly after the October 23 meeting, his superior excluded him from further “deliberations or decision-making regarding the child” because he had “diverged from [the Defense Department’s] position” that

the United States should work with Afghanistan to

identify Baby Doe’s next of kin and was “attempting to

interfere inappropriately in decision-making regarding

the child.” Pet. App. 141a. Whatever Mast’s personal

views, they were not the judgment of his command or

the position of the United States.

Yet through private litigation, Mast effectively substituted his own judgment for that of the United States

and undid the results of a reunification process that had

been carefully coordinated and executed by numerous

policymakers, diplomats, and military personnel, including amici. In August 2021, when the security situation in Afghanistan deteriorated, Mast arranged the

evacuation of petitioners and Baby Doe with the assistance of federal employees who lacked knowledge of the

child’s history. Pet. App. 146a. In communications with

U.S. personnel, Mast represented that Baby Doe was

his “daughter per both Afghan and U.S. court orders,”

did not disclose that the Afghan government had placed

her with the relatives it had identified, and described

petitioners only as a “Pashtun Couple” accompanying

the child. Ibid. On September 3, 2021, the Masts presented the final adoption order to federal personnel at

Fort Pickett, Virginia, who likewise lacked knowledge of

the preceding events. The Masts were thus permitted to

leave with Baby Doe over petitioners’ objections, and petitioners have not seen Baby Doe since. Pet. 10-12; Pet.

App. 146a-47a.

III. The Decision Below Undermines U.S. Credibility and

Threatens Recurring Harm Far Beyond This Case

The facts of this case are extraordinary,6 and amici

remain profoundly shocked and disturbed by what the

Masts were ultimately able to pull off. By reinstating an

order that was used to reverse a reunification decision

reached and implemented through official U.S. military

and diplomatic channels, the decision below undermines confidence that commitments made through

those channels will be honored in the future and weakens the Nation’s ability to insist on reciprocal safeguards abroad. And amici agree with petitioners (Pet.

36) that the Masts’ scheme offers a blueprint for future

abuse of the system. The consequences of the Virginia

Supreme Court’s decision thus extend far beyond this

case.

A. The Result Here Undermines Confidence in U.S.

Commitments

U.S. operations abroad depend on foreign governments and humanitarian partners having confidence

that commitments made through official U.S. channels

will be honored and fulfilled.7

6 See generally Rozina Ali, How Did This Man Think He Had the

Right to Adopt This Baby?, N.Y. Times Mag. (Nov. 10, 2022),

https://www.nytimes.com/2022/11/10/magazine/afghanistan-orphan-baby-l.html.

7 See generally Peter F. Cowhey, Domestic Institutions and the

Credibility of International Commitments: Japan and the United

States, 47 Int’l Org. 299, 299-300 (1993); Ctr. for Army Lessons

Learned, U.S. Army, Commander and Staff Guide to Multinational

Interoperability iii, 1 (2020), https://api.army.mil/e2/c/downloads/2023/01/31/3dadfaa2/20-12.pdf (identifying mutual trust and

confidence as essential to multinational operations).

Here, after interagency consultation, the State Department concluded that honoring Afghanistan’s request would respect Afghan sovereignty and avoid the

perception that the United States was holding an Afghan child against the wishes of her family and government—a perception that, in light of prior insider attacks

by Afghan security-force members following perceived

U.S. affronts to Afghan religious beliefs, could have increased the threats faced by U.S. military personnel incountry. See Pet. App. 200a-01a.8 The United States

then communicated and implemented that decision

through official military and diplomatic channels, in coordination with Afghan officials and ICRC personnel.

Pet. App. 201a-02a.

Yet a service member acting in his private capacity

later used a state-court order to reverse the result of

that government-to-government process. From a foreign

partner’s perspective, U.S. officials agreed to and carried out a course of action, only for an American court

order—entered without participation by the child’s actual caretakers or the institutions responsible for her

care and transfer—to be used to undo it. In amici’s experience, such an episode can erode confidence in U.S.

assurances and make future military, diplomatic, and

humanitarian coordination more difficult.

8 See also, e.g., Ernesto Londoño, Many Insider Attacks in Afghan-

istan Stem from Personal Motives, Data Suggest, Wash. Post (Dec.

19,

2012),

https://www.washingtonpost.com/world/nationalsecurity/many-insider-attacks-in-afghanistan-stem-from-personalmotives-data-suggest/2012/12/18/86e515ea-4957-11e2-ad54580638ede391_story.html (quoting a draft Army handbook stating

that many insider altercations occurred because foreign troops “lack

empathy for Muslims and/or cultural norms, resulting in a violent

reaction” from Afghan troops).

That outcome also weakens the United States’ ability to demand reciprocal safeguards abroad. When an

American court leaves in place a one-sided order permanently altering a foreign child’s family relationships,

even though the child’s actual caretakers received no notice and home-country authorities had no opportunity to

participate, the United States has less credibility when

it calls on foreign governments to afford the same basic

safeguards before taking comparable action affecting

American children abroad. See Abbott v. Abbott, 560

U.S. 1, 15 (2010) (recognizing that a U.S. court’s interpretation of an international child-abduction treaty may

affect foreign states’ reactions and the “State Department’s ability to reclaim children abducted from [the

United States]”).

B. The Same Procedural Mechanism Can Disrupt

Future Overseas Operations

U.S. forces and diplomats will continue to encounter

children separated from their families during armed

conflict, evacuations, and humanitarian crises. When

they do, reuniting those children with their families is a

top priority,9 and one that can persist long after an

9 E.g., Steven Williams, ISAF Docs Struggle to Save Scores of Chil-

dren in Afghanistan, U.S. Marine Corps (July 22, 2010), https://tinyurl.com/5n9y7yus (describing a setting in which Afghan children

received medical care provided by U.S. and British military forces);

Erin Lasley, 62nd AW Remembers Operations Babylift, New Life,

62d Airlift Wing History Office (May 27, 2020), https://tinyurl.com/dz6crt9h (discussing Operations Babylift and New Life

in Vietnam); Angela Parady, Soldiers Help Build Community Relations in Kosovo, U.S. Army (Nov. 2, 2012), https://tinyurl.com/2enf7n72 (discussing peacekeeping efforts in Kosovo);

Joe McFadden, Hurlburt Field Medics Continue to Save Lives in

Haiti, U.S. Air Force (Jan. 26, 2010), https://tinyurl.com/48mz356d

immediate crisis has passed. After the fall of Kabul in

2021, for example, the United States undertook a yearslong effort to reunite Afghan minors separated from

their parents during the noncombatant evacuation operations.10

The combination of worldwide U.S. operations and

modern litigation makes similar clashes between statecourt family-law proceedings and federal operations

readily foreseeable. As this case illustrates, a litigant

abroad can initiate a proceeding in the litigant’s State of

residence even when the child, her caretakers, and the

responsible federal personnel are overseas. Electronic

filing and remote proceedings reduce the geographic

barriers that might once have slowed such a case. State

procedures also permit emergency family-law relief

without advance notice in specified circumstances. See,

e.g., Ariz. R. Fam. Law P. 48; Cal. R. Ct. 5.151(a)-(b), (d)(e).

Children displaced by war are especially vulnerable

to such proceedings. Their identities and family relationships may initially be uncertain; family tracing may

take time; their caretakers may live thousands of miles

from the forum, may not speak English, and may have

(discussing U.S. Air Force support provided in the wake of a Haitian

earthquake); Robert Vanderpool, Looking Back: Operation RESTORE HOPE—OSI Operations in Somalia, Office of Special Investigations (Dec. 21, 2022), https://tinyurl.com/jnh9f534 (discussing Operation Restore Hope carried out in Somalia); U.S. Marine

Corps, Marine Security Guard’s Story of Seoul During Beginning of

Korean War (Oct. 14, 2015), https://tinyurl.com/3znawbyu (discussing the evacuation of the U.S. Embassy in Seoul during the Korean War).

10 See U.S. Dep’t of State, Department of State Advances Reunification of Unaccompanied Afghan Minors with Updated Parolee

Form (Oct. 3, 2023), https://tinyurl.com/4e9uvzup.

no reason to monitor an American court docket; and the

responsible U.S. and home-country institutions may not

learn of the proceeding until the resulting order is presented as final. Those circumstances magnify the risks

of concealment and one-sided decision-making—the

very risks notice and adversarial process are designed

to check.

The decision below thus leaves a repeatable path by

which a private litigant can obtain and later deploy a

state-court order to disrupt an authorized U.S. military,

diplomatic, or humanitarian process before the child’s

actual caretakers and the responsible U.S. and homecountry institutions have an opportunity to respond.

This Court’s review is warranted before that mechanism is used again.

CONCLUSION

For the foregoing reasons, and for the reasons stated

in the petition, the petition for a writ of certiorari should

be granted.

Respectfully submitted.