American ISIS Suspect Held in Iraq Has Right to Lawyer, Judge Rules
Posted December 24, 2017 1:40 p.m. EST
Calling the Trump administration’s position “disingenuous” and “troubling,” a federal judge on Saturday ordered the Pentagon to permit a lawyer for the American Civil Liberties Union to meet with a U.S. citizen who has been imprisoned in military custody for three months after being deemed an enemy combatant.
In a novel case pitting the individual rights of citizens against government wartime powers, Judge Tanya S. Chutkan of the U.S. District Court of the District of Columbia also ordered the Pentagon not to monitor that conversation — and told it not to transfer the man, who is being held in Iraq, until the ACLU conveys his wishes to her.
A Syrian militia captured the American citizen in mid-September and turned him over to U.S. forces as someone suspected of fighting for the Islamic State. The government has refused to identify the man, but officials familiar with the matter have said he is a dual citizen of the United States and Saudi Arabia who was born on U.S. soil to visiting Saudi parents and raised in Saudi Arabia.
The ACLU has filed a habeas corpus lawsuit on the man’s behalf challenging his indefinite detention without charges or a lawyer. The Trump administration has asked Chutkan to dismiss the case, arguing that the rights organization lacks standing to file suit on the detainee’s behalf since it has not met with the man, has no relationship with him and does not know his wishes.
In a 12-page ruling, Chutkan sharply criticized the government’s position as “disingenuous at best” since the Defense Department is preventing lawyers for the group from conferring with the man. She also noted that the government has acknowledged that the man asked for a lawyer after being read the Miranda warning when interrogators shifted from questioning him for intelligence purposes to questioning him in hopes of gathering evidence that is admissible in a courtroom.
“Having informed the detainee of his right to counsel, and the detainee having asked for counsel, the department’s position that his request should simply be ignored until it decides what to do with the detainee and when to allow him access to counsel is both remarkable and troubling,” she wrote.
Wyn Hornbuckle, a Justice Department spokesman, declined to say whether the government would comply with the ruling or file an appeal.
“We’re reviewing the ruling and will decline to comment,” he said.
But Jonathan Hafetz, the lead ACLU attorney on the case, praised the judge’s decision.
“This is a landmark ruling that rejects the Trump administration’s unprecedented attempt to block an American citizen from challenging his executive imprisonment,” Hafetz said. “Ensuring citizens detained by the government have access to a lawyer and a court is essential to preserving the Constitution and the rule of law in America.”
National security officials initially wanted to prosecute the man in a U.S. court for providing material support for terrorism, according to officials. But that proved difficult because of a lack of courtroom-admissible evidence — in part because questioning of him ceased after he was read his rights and asked for a lawyer.
The New York Times reported last week that officials have now decided to try to transfer the man to Saudi Arabia, according to officials. That decision was reached Dec. 15 at a meeting of the National Security Council’s “deputies committee,” which is composed of the No. 2 officials of national security departments and agencies.
Such a transfer would be contingent on diplomatic assurances. Other repatriations and resettlements of former Guantánamo Bay detainees have typically included promises not to let former detainees travel abroad and other security measures. Saudi Arabia also runs a custodial rehabilitation program for low-level Islamist extremists.
It is not clear whether the U.S. government would seek to make the man renounce his U.S. citizenship — and with it his right to enter the United States — as part of any such transfer. In 2004, when the Bush administration sent to Saudi Arabia a Guantánamo detainee who similarly was born on U.S. soil to visiting Saudi parents, the detainee, Yaser E. Hamdi, agreed to renounce his citizenship as part of the deal. But by then, Hamdi had a lawyer.
Hafetz filed last week’s Times article with the court in support of the ACLU request for immediate access to the man, and Chutkan on Friday ordered the government to respond. The Justice Department told her later that day that no official has talked with the detainee about renouncing his citizenship.
But it also told the judge that “there appears to be no case law suggesting that an individual must be provided counsel before he relinquishes citizenship.”