American ISIS Suspect Fights Plan to Release Him in Syria
Posted June 7, 2018 8:43 p.m. EDT
Updated June 7, 2018 8:48 p.m. EDT
WASHINGTON — A U.S. citizen detained by the military in Iraq as a suspected Islamic State member will be released back into Syria, the Trump administration has told a judge, a plan that his lawyers called “a death warrant.”
The move would avoid a fight in court over the high-stakes question of whether the government has the legal authority to put Islamic State suspects in indefinite wartime detention as enemy combatants. If a judge were to rule against the government on that question in the detention case, it would jeopardize the underpinnings of the entire war effort against the Islamic State.
But lawyers for the man, whose name has not been made public, vowed to fight the planned transfer in court. The plan was the latest twist in a habeas corpus case that has raised novel legal issues about the rights of individual Americans and the government’s wartime powers.
The American Civil Liberties Union planned to file an emergency request for a temporary restraining order against the military on Thursday, said Jonathan Hafetz, an ACLU lawyer who is the lead attorney for the man.
In its filing late Wednesday disclosing the government’s Syria release plan, the Justice Department said the military intended to release the man in an unidentified Syrian city after at least 72 hours had passed.
The Pentagon, it said, had decided that releasing the man in Syria would be consistent with traditional military practice and with the department’s obligations under the law of war. It had given the man two options — release “either in a town or outside an internally displaced person camp” — but the man had balked at both, so the Pentagon picked the town option for him.
In a declaration that was partially unsealed on Thursday afternoon, Mark E. Mitchell, a senior Pentagon official, provided further details about the plan. The man, he said, would be given a new cellphone “in its original sealed packaging,” enough food and water to last for several days, his legal papers, and $4,210 in cash — the same amount he had when captured.
Mitchell further said that the Pentagon would notify the Syrian Democratic Forces, military allies of the Americans, that the man would be released and was likely to be traveling through its checkpoints, and tell them that the United States “is not seeking and/or requesting” that the man be detained again.
It is not clear whether the man would have a right to a court order requiring some safer outcome. Judge Tanya S. Chutkan, who is overseeing the habeas corpus case, has already made clear that she does not think he has a right to be brought back to the United States.
The man is a dual citizen of the United States, where he was born, and Saudi Arabia, where he was raised. He was captured by a militia in Syria in September and turned over to the U.S. military, which has been holding him at a base in Iraq as an enemy combatant for nearly nine months.
The man said he went to Syria to be a journalist and was arrested by the Islamic State, then worked for the group as a condition of being freed from prison. But the government has said that Islamic State records show he registered with the group as a fighter, and his social media postings indicate he sympathized with the group. It has not accused him of fighting for the group.
What to do with the man has been a dilemma. Prosecutors have deemed his case difficult to charge in civilian court; much of the evidence against him may not be admissible under courtroom standards. As an American, he is also not eligible for charges before the troubled military commissions system. But security officials have wanted to keep him locked up, or at least out of the United States.
This spring, the government struck a deal with another country — apparently Saudi Arabia — to take custody of him. But the man balked at the proposed arrangement, and Chutkan blocked the military from carrying out the transfer to that country against his will — a decision upheld last month by the U.S. Court of Appeals for the District of Columbia Circuit.
It has not been clear how or where the man would be released if he won his lawsuit. There is no evidence the man was in Iraq before the U.S. military brought him there, and it would apparently require the consent of the Iraqi government to release him on its soil. Moreover, he would risk being immediately rearrested there, and the Iraqi courts have been giving 10-minute trials and death sentences to Islamic State members.
Hafetz maintained that if the government wanted to release his client, it must do so “to a location that is not a war zone, and he has to be provided with some identity documents or something that establishes that he is in the territory legally and he has to not be subject to physical harm and basically almost automatic re-detention.”
He added, “They have to find a safer place, and if they can’t, they have to release him in the United States.”
The court rulings blocking the man’s forcible transfer to apparent Saudi custody had seemed to clear the way for a hearing later this month on the most important issue raised by the case: whether it is lawful for the government to indefinitely detain the man without charges as part of a wartime enemy force.
The Obama and Trump administrations argued that the government needed no new authorization from Congress to fight the Islamic State because it is covered by the authorizations to use military force against al-Qaida and for the Iraq War. But that claim is contested.
“The government has sought to throw up one roadblock after another to avoid the basic question of whether they are holding this man legally,” Hafetz said. “If they are not, or if they don’t want to charge him or hold him, the answer is to release him in a way that guarantees his safety and doesn’t condemn him to danger or possible death.”