Nearly three months after the U.S. military detained an American citizen as an enemy combatant, the Justice Department was forced to admit that it has denied the unknown citizen an attorney despite his explicit request.
The embarrassing admission resulted from a judge’s exasperation Thursday morning over the Trump administration’s ongoing insistence that it has the right to indefinitely detain an American citizen during wartime, despite explicit constitutional guarantees protecting his right to a trial.
As The Daily Beast first reported, the American was detained in Syria in September and said to be fighting for the so-called Islamic State. On Thursday morning, Judge Tanya Chutkin said it was “frightening” that the government offered no estimate for how long it could legally detain the U.S. citizen, whose name it has never even disclosed, without charging him with a crime. She ordered the Justice Department to clarify whether the citizen has requested a lawyer.
In response, late Thursday afternoon, the Justice Department revealed for the first time that FBI interrogators had, on an unspecified date, provided the unnamed citizen with his Miranda rights – among them the right to an attorney.
He made it clear he wanted a lawyer. They didn’t provide one.
That appears to have shut down that phase of his interrogation, though he was willing to cooperate if he had an attorney present.
“The individual stated he understood his rights, and said he was willing to talk to the agents but also stated that since he was in a new phase, he felt he should have an attorney present. The 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 ok and that he is a patient man,” the Justice Department wrote in its latest court filing.
“The individual then asked whether when he saw the agents next with his attorney, would it be at his current location or somewhere else. The agents told him they were uncertain when they would see him again. No further questioning of the individual for law enforcement purposes has taken place.” (Miranda rights only apply to material the government wishes to use at trial, not, in this wartime context, interrogations for intelligence purposes.)
Yet the government attorneys portrayed as a mystery the anonymous citizen’s current wishes about pressing his legal rights: “Respondent is not currently aware of any additional information regarding the individual’s wishes in connection with his invocation of constitutional rights or pursuit of remedies in U.S. courts.”
It’s the latest development in a legal drama that has largely escaped national attention despite its substantial implications for civil liberties and wartime authorities in the Trump era. And it’s occurring amidst apparent plans to elevate two hardliners, CIA Director Mike Pompeo and Senator Tom Cotton, to the respective helms of the State Department and CIA.
“The government’s assertion of unchecked detention power over all Americans should terrify every person in this country,” Jonathan Hafetz, the attorney who argued Thursday against the government for the American Civil Liberties Union (ACLU), told The Daily Beast.
The government concession “reinforces the vital role of habeas and the need for immediate counsel access to prevent the further violation of this citizen’s constitutional rights,” Hafetz said.
There’s another legal issue at stake. If the government doesn’t charge him in federal court with a crime, but Chutkin permits him to contest his detention as an enemy combatant, he could ask judges to invalidate the entire war against the so-called Islamic State. And since the 2001 authorization that forms the basis for his detention—and the broader war—doesn’t mention ISIS at all, he might even win.
But that’s not at immediate issue. The immediate question Chutkin is considering is whether the ACLU has the right to petition the courts for a trial on behalf of someone it does not represent – and whose identity it has no way of knowing.
On September 14, The Daily Beast revealed that a U.S. citizen said to be fighting for the so-called Islamic State had surrendered in Syria to proxy forces. The military, which took custody of the American on or around September 12, has held him at a facility in Iraq.
But the military has released no information about him, not even his name – a step which would permit any family he has to seek legal counsel and a court date for him. Neither the Pentagon nor the Justice Department has said when or even if they intend to seek charges in a civilian court. The only outside entity in nearly three months to obtain access to him is the International Committee of the Red Cross, but its policy is to trade confidentiality for access to detained people worldwide.
Into the legal vacuum stepped the ACLU. The organization filed what’s called a habeas corpus petition, a mechanism to force a hearing for a person in custody before a judge. The Justice Department disputed the ACLU’s ability to invoke the legal rights of someone who it has never met and has not retained it – a circumstance that, the ACLU responded, arises from the government’s anonymous, incommunicado detention.
Chutkan ordered Thursday’s hearing to adjudicate whether the ACLU ought to have access to the anonymous enemy combatant. According to the Washington Post, the man at least twice requested a lawyer—including after receiving his Miranda rights to an attorney—but the government has refused to provide one. Chutkan ordered the Justice Department to clarify if that was true, and now the Justice Department has conceded the Post got it right.
Both the Post and the New York Times, citing anonymous officials, have reported that the real reason the man is detained as an enemy combatant is because the government lacks sufficient evidence against him to charge him with a crime.
“This is an eerie revision of the basic argument of the first enemy combatant cases” during George W. Bush’s first term, the ACLU’s Hafetz said, before the Supreme Court ruled in 2004 that Americans held as enemy combatants have the legal right to contest their detention. “This is an attempt to replay the same claims for a blank check.”
Chutkan indicated at the Thursday morning hearing that she would rule on next steps for the habeas petition expeditiously, but gave no further detail.