American Detained by U.S. Military Says He Wants to Sue

WASHINGTON — A U.S. citizen who has been held in military custody in Iraq for four months has told lawyers with the American Civil Liberties Union that he wants to bring a lawsuit challenging his detention and wants the group to represent him, the organization said in a court filing Friday.

The statements came from a man who, in September, surrendered to a Syrian militia, which then turned him over to U.S. forces as a suspected Islamic State fighter. He made the statements in an unusual videoconference with ACLU lawyers on Wednesday, the court filing said. A federal judge last month had ordered the military to let the lawyers talk to the detainee.

The court filing was sparse on details, saying that during the Jan. 3 videoconference, the man informed the ACLU lawyers that “he wishes to continue this habeas corpus action” challenging the legality of his detention and asking to be released, and for the group to represent him.

The military has refused to identify the man other than to say that he existed and was being held as an enemy combatant. In October, the ACLU filed a lawsuit on his behalf challenging his detention. In an interview, Jonathan Hafetz, the lead ACLU lawyer on the case, said he was one of three attorneys who spoke to the man, and that they conversed in English.

Hafetz said the man asked them not to publicly disclose his name. Other than saying he was indeed born on U.S. soil, he declined to confirm that the man was born to visiting Saudi parents and raised in Saudi Arabia, as officials familiar with the matter have said.

The Justice Department had asked the judge overseeing the case, Tanya S. Chutkan of U.S. District Court of the District of Columbia, to dismiss the case, arguing that she lacked jurisdiction to oversee the man’s detention because the ACLU lacked standing to bring the lawsuit. The Justice Department had argued that the ACLU had no prior relationship with the prisoner and did not know if he wanted the case brought or whether he wanted the rights group to represent him.

The ACLU had urged Chutkan to order the military to let its attorneys speak with him, arguing that the government should not be able to hold a U.S. citizen in indefinite wartime detention without charges and thwart habeas review of the legality of that step by refusing to identify the prisoner or let lawyers contact him.

What to do with the prisoner has posed a dilemma for national-security officials, who want to find a way to keep him locked up but apparently lack courtroom-admissible evidence to charge him with providing material support to terrorism. The government has said that after interrogating him for intelligence purposes, he was read the Miranda warning and asked for a lawyer before he would talk for law enforcement purposes, upon which questioning ceased.

Hafetz declined to say whether the ACLU had advised the man to continue not talking.

The government also does not want to bring the man to the wartime prison at Guantánamo Bay, in part because he is considered relatively unimportant in terms of threat or intelligence, officials have said.

In addition, bringing him there would open the door to legal headaches, including giving a judge an opportunity to rule on a disputed question: whether the government has lawful authority to wage war against the Islamic State under the authority granted by Congress to fight the perpetrators of the Sept. 11, 2001, terrorist attacks.

But if the habeas case continues with the man held on Iraqi soil, the same legal question could now be presented to Chutkan.

Last month, after The New York Times reported that the Trump administration had decided to ask Saudi Arabia to take custody of the man, Chutkan had ordered the government not to transfer him until the ACLU talked with him.

In the court filing, Hafetz asked Chutkan to extend that restriction until the litigation could be resolved. In the interview, he declined to say whether the man wanted to go to Saudi Arabia specifically, saying that his legal case is asking only to be released from military custody.

Later Friday, Chutkan ordered the government to respond to the filing by 5 p.m. Monday. A Justice Department spokesman declined to comment beyond saying: “We are reviewing the filing.”