President Donald Trump’s administration detained a United States citizen in military custody for nearly four months. He was classified as an “enemy combatant,” and only recently is the public finding out about the citizen’s detention after he requested an attorney from the American Civil Liberties Union to represent him.
On January 5, the ACLU informed the federal district court in Washington, D.C., that they spoke to the detainee, who would prefer that his name not be released. He would like to challenge being held incommunicado.
“The U.S. has been holding the citizen since mid-September as an ‘enemy combatant’ for allegedly fighting for ISIS, but it has provided no evidence to support this assertion,” according to the ACLU. The Trump administration opposed the ACLU’s legal challenge and its offer of assistance to the American, even after it was confirmed through the litigation that he had asked for a lawyer.”
ACLU attorney Jonathan Hafetz stated, “The Trump administration illegally denied an American his rights to access a lawyer and a court for nearly four months, but those efforts have finally failed. Now that our client has secured the judicial review that the government attempted to block, he looks forward to establishing the illegality of his detention.”
The U.S. citizen “surrendered” to Syrian Democratic Forces on September 12, 2017. He was transferred into the custody of U.S. armed forces. He was not charged with any crime. He was allowed two visits by representatives of the International Committee of the Red Cross. Other than that, the U.S. military allowed him “no contact or communication with anyone except government personnel.”
Where the U.S. citizen is being held in indefinite detention is unknown, but the Defense Department said he is in a “restricted military zone.”
As early as September 29, the ACLU expressed concern to Secretary of Defense James Mattis and Attorney General Jefferson Beauregard Sessions. A petition for a writ of habeas corpus was filed on October 5 and an emergency motion for relief one week later.
The Defense Department insisted to a federal court that the ACLU had no standing and denied attorneys access to the detainee. It suggested he did not have an “immediate” right to meet with counsel because his “final disposition” has not been determined by the government.
Officials additionally maintained three months was not enough time to establish the U.S. citizen’s status. It wanted to hold the individual for more time without granting access to counsel so that they could decide whether to criminally prosecute, transfer, release, or further detain the individual.
Judge Tanya Chutkan rejected the Defense Department’s arguments, and on December 23, ordered the ACLU to be given access and not transfer the individual anywhere until the ACLU informed the court of his “wishes.”
The FBI interrogated him during the past months. It seems he was willing to talk to agents, but when the FBI finally advised the U.S. citizen of his right to remain silent and right to counsel, he said he would like a lawyer.
“Agents explained that due to his current situation, it was unknown when he would be able to have an attorney, and the individual stated that it was okay and that he is a patient man,” according to a Defense Department filing.
The detention raises several profound issues. How long would the Trump administration have denied access to a lawyer if the ACLU had not intervened?
Where would they like to transfer the U.S. citizen? If he is not charged, will he be sent to the military prison at Guantanamo? If he is charged, will he be charged in the highly dysfunctional military commissions system instead of in the federal judicial system?
What will he be charged with? If he was on the side of “rebel” groups the CIA or Pentagon was arming, how can the U.S. government turn around and prosecute him?
The Defense Department apparently believes he fought alongside or sympathizes with ISIS forces. The ACLU doubts whether the Defense Department has evidence. Does the government plan to fabricate some case to “link” him back to ISIS fighters?
These are all critical questions, especially since the system for indefinite military detention was largely left intact by President Barack Obama’s administration. In fact, the U.S. citizen is possibly fortunate he was captured and not killed in a drone strike.