WASHINGTON — More than two months ago, the U.S. military detained a U.S. citizen in Iraq who was suspected of fighting with the self-described Islamic State in Syria. Since then, the military has kept the man’s identity a secret. The man has not yet been charged with doing anything wrong, and the government has blocked him from meeting with U.S. lawyers who want to offer him counsel.
On Thursday, the American Civil Liberties Union Foundation will argue in a federal district court that the Trump administration is illegally detaining a U.S. citizen without charge and without access to a lawyer. The group, which filed a habeas corpus petition on behalf of the prisoner on Oct. 5, will urge Judge Tanya S. Chutkan to require the government to allow ACLU lawyers to offer legal assistance to the unidentified man.
“It is indisputable that a U.S. citizen has the right to access the courts, but the government has made that right basically impossible to exercise,” Jonathan Hafetz, the ACLU lawyer who will be arguing the case on Thursday, told HuffPost. Without access to the courts, he continued, “all the rights in the Constitution are basically null and void.”
The ACLU requested Thursday’s hearing as part of an effort to force the government to make a decision about the prisoner’s fate. Every passing day “is an assault on his rights and on the Constitution,” Hafetz said.
The Trump administration has stopped short of claiming the unnamed citizen does not have the right to a lawyer. Instead, it has argued in court filings that the prisoner is being held under “law of war” detention policies, and that ACLU lawyers cannot act on his behalf since they have never met him and have no pre-existing relationship with him. However, the ACLU also has no way of reaching or establishing a relationship with the man or his family since the government will not release his name.
“It’d be stupid to deny he has a right to a lawyer — if only because it’s so obvious he has habeas rights,” Robert Chesney, a former Justice Department official who worked on detention policy, told HuffPost. “But they’re definitely saying the ACLU doesn’t have standing to be that lawyer, and then they’re being very, very cute about the point that this is sort of a chicken and egg problem the government is creating here.”
The man in custody has refused to talk to interrogators and asked multiple times to see a lawyer, The Washington Post reported last month. The government argued in a court filing that representatives from the International Committee of the Red Cross who have met with the detainee can help him connect with his family, and his family could then seek legal remedy as his “next of friend.” But that logic assumes that ICRC representatives have been able to locate the detainee’s family and that his family is interested in helping.
“It cannot be the case that the government could circumvent habeas and neuter it by just not letting anyone know who they grabbed,” said Chesney, who is now a law professor at Texas Law. “That’s ridiculous.”
It cannot be the case that the government could circumvent habeas and neuter it by just not letting anyone know who they grabbed. Robert Chesney
The government refers to the unnamed prisoner as an “enemy combatant,” a phrase the George W. Bush administration used to refer to wartime prisoners. Although the Barack Obama administration continued to detain wartime prisoners under similar legal authorities, it avoided the term “enemy combatant,” which became increasingly associated with the controversial detention practices of the prior administration.
The ACLU has warned that the Trump administration’s position on the case of the unnamed American risks reverting back to Bush-era detention policies that were struck down by the Supreme Court.
“We’ve been here; the courts have decided in a series of decisions that merely labeling a citizen an ‘enemy combatant’ does not strip him of basic constitutional protections,” Hafetz said. “This battle was fought time and again in the courts after 9/11, and the Bush administration lost.”
The Supreme Court ruled in 2004 that U.S. citizens detained as enemy combatants must be granted due process, including the ability to challenge the basis of their detention before an impartial authority. And in 2008, the court ruled that the habeas corpus statute applies to U.S. citizens detained abroad.
Although President Donald Trump said he would consider sending American citizens to the Guantanamo Bay detention facility in Cuba, the White House has been noticeably quiet on the case of the unnamed U.S. citizen — the first major test of Trump’s willingness to challenge the courts on his wartime detention authority.
Chesney doesn’t view the government’s current position on the unnamed citizen’s case as evidence of any sweeping policy decision.
“It seems pretty clear from the facts that have leaked out that this just fell into their lap very unexpectedly,” he said. “They haven’t yet made the decision to revive long-term military detention at all, and would never pick a U.S. citizen as the lead case.”
The ACLU has urged the Trump administration to turn the prisoner over to the federal court system, rather than sending him to Guantanamo Bay or releasing him to Iraqi authorities, who have a documented history of torturing accused ISIS fighters.
More than 600 people have been convicted in U.S. federal courts of terrorism-related charges since the Sept. 11, 2001 attacks. Only eight people have been convicted in the military commissions, the Guantanamo-based war court, and four of those cases were overturned in part or in whole on appeal.
The Pentagon and the Justice Department declined to comment on whether they believe it’s legal to send the prisoner to Guantanamo or release him to Iraqi authorities.
The Washington Post reported last month that Justice Department officials don’t believe they have enough evidence to charge the U.S. citizen in federal court. Part of the problem for prosecutors is the fact that he was not captured by U.S. forces. Officials told the Post that he surrendered to a rebel group in Syria, which turned him over to the Americans. Because of this, it’s unlikely there is a witness who could be called to testify on the circumstances of his surrender. And if the detainee was unknown to U.S. officials before he surrendered, it’s unlikely that there is surveillance material that could be used against him in court.
For now, the Trump administration’s strategy appears to be limited to buying time to figure out what to do with its American detainee.
“We are exercising the utmost care and consideration in this situation and will make a decision on the disposition of this detainee’s custody in the near future, consistent with U.S. and international law,” Maj. Ben Sakrisson, a Defense Department spokesman, wrote in an email. “We anticipate releasing more information on the individual once a final disposition has been determined.”
Chesney argued that the judge should order the government to explain at what point it will provide the prisoner access to legal counsel.
“The court shouldn’t just accept just an assertion that we’re not there yet. There needs to be a reasoned argument as to why it’s still too soon, and there needs to be an answer to the question of ‘What is the indicator of when we are there?’” Chesney said.
“Is it a year from now? Is it a leap year? Is that what we’re waiting for? What are we waiting for?”
This article has been updated to include a Defense Department spokesman’s comment.