WASHINGTON ― An unnamed American citizen being detained by the U.S. military after being accused of fighting alongside the Islamic State had told FBI agents he wanted a lawyer, the Justice Department admitted Thursday. The military has not allowed the man, who was taken into custody in Iraq 2½ months ago, access to legal counsel.
The Justice Department’s admission was the result of a court order earlier Thursday when U.S. District Judge Tanya S. Chutkan demanded the government tell her by 5 p.m. whether the detainee had been advised of his constitutional rights and whether he has asked for legal representation. Kathryn Wyer, the Justice Department attorney arguing on behalf of the government, declined to answer the judge’s questions in court, saying she had to first confer with the Department of Defense.
The American Civil Liberties Union filed a habeas corpus petition — a formal way to challenge an individual’s imprisonment — on the man’s behalf on Oct. 5, after he had already been in prison for weeks.
“This admission by the government reinforces our demand that the citizen be given access to a lawyer, which is his fundamental right under the Constitution,” Jonathan Hafetz, the ACLU lawyer arguing the case, said in a statement. “The Trump administration’s position that it can lock up an American in secret without charges or the ability to challenge the detention in court is not how our legal system works.”
The government is trying to get the ACLU’s case dismissed, arguing that the group’s lawyer do not have legal standing to represent him since they do not know him. Chutkan criticized the government’s position as “circular reasoning,” since it is preventing the detainee from having a relationship with the ACLU lawyers by holding him incommunicado and keeping his identity a secret.
When FBI special agents approached the American citizen to question him for “law enforcement purposes,” they advised him of his right to remain silent and his right to have a lawyer present during questioning, according to the Justice Department’s Thursday evening filing.
The prisoner responded that he understood his rights and that he wanted an attorney present since he “was in a new phase.” The FBI agents told him that “due to his current situation, it was unknown when he would be able to have an attorney,” Justice Department lawyers wrote. The detainee assured the FBI agents that he was “a patient man.”
The prisoner has not been questioned “for law enforcement purposes” since that conversation, DOJ lawyers wrote.
The Justice Department filing did not indicate the date on which this conversation took place. The repeated references to “law enforcement purposes” and the mention of “a new phase” suggests that the prisoner was interrogated without a lawyer present for military intelligence-gathering purposes. Information gained during these interrogations is not admissible in court.
The American citizen was taken into U.S. custody in mid-September after surrendering to a Syrian rebel group, which turned him over to the Americans. The Washington Post reported earlier this month that he was first questioned by an “interagency interrogation team” for intelligence purposes and then by FBI agents seeking to build a case against him. The detainee refused to talk to the interrogation team and requested a lawyer, the Post reported.
Interrogators could continue questioning the detainee for intelligence purposes, Hafetz acknowledged in an email. “But since he is being held as an enemy combatant, he has the right to file a habeas and have the assistance of counsel in pursuing it.”
Hours after the Justice Department admitted the detainee requested a lawyer, the ACLU asked the government to ask him:
If he wants to file a petition asking a court in the U.S. to decide whether his imprisonment is lawful
If he wants the opportunity to speak with a U.S. lawyer “confidentially, without government interference” about filing such a petition
If he wants to work with ACLU lawyers, or a different lawyer, both free of charge
The ACLU requested that the prisoner be asked those questions “in a language the detainee can understand, and in an atmosphere free from coercion, pressure or discouragement. The ACLU asked the government to submit the detainee’s responses by Dec. 4.
Read the Justice Department’s filing here:
This article has been updated to include the ACLU’s questions to the government.