Judge: Gov’t Must Give ‘Enemy Combatant’ U.S. Citizen Access to ACLU Attorney
A federal court ruled that the Pentagon must allow an anonymous U.S. citizen—held as a combatant—access to an attorney, marking the Trump admin’s third legal loss in as many days.
A federal judge has taken a major step toward rejecting the Trump administration’s campaign to prevent an American citizen detained indefinitely as an enemy combatant from challenging his captivity in court.
Not only did Judge Tanya Chutkan of the District of Columbia district court order the Pentagon to permit access to the anonymous man for his would-be attorneys, she also barred the administration from making an end run around the U.S. legal system that it has long been considering – as a tactic to avoid precisely the defeat in court that Chutkan has now delivered.
Whether and how the Trump administration complies with Chutkan’s order is the latest drama in an extraordinary case that has seen the resurrection of sweeping government claims of detentions power. The last time the government argued it could hold an American citizen in military detention without access to the courts was the early years of George W. Bush’s administration, and the Supreme Court in 2004 rejected the contention in landmark 2004 case.
Late on Saturday night, the 103rd day of the man’s captivity, Chutkan instructed the Pentagon to provide the American Civil Liberties Union with “temporary, immediate and unmonitored access” to the man, whom the military is holding somewhere in Iraq without ever releasing his name – another aspect of the government’s efforts to prevent legal intervention in the case.
The anonymous man’s detention was first reported by The Daily Beast in September. He was captured by U.S.-aligned Syrian forces and allegedly fought for the so-called Islamic State before his transfer to U.S. custody on or around September 12.
Chutkan took a procedural step short of granting the ACLU’s request that the administration either charge the man with a crime or release him, known as a habeas corpus petition and a foundational aspect of Anglo-American law. The fact of the man’s anonymity has prevented any relative from hiring an attorney to challenge his detention, prompting the ACLU to submit a habeas petition—also first reported by The Daily Beast—for a man who has no idea the civil-liberties group seeks to represent him.
Per Chutkan’s order, the ACLU is to determine initially whether the man seeks to challenge his detention and whether he wants the ACLU to represent him in doing so. Thus far, over the past 104 days, only his captors and the International Committee of the Red Cross has had access to him. Chutkan said the Pentagon could resubmit its request for the courts to dismiss the habeas petition if the man declines ACLU representation.
It was the third loss in federal court for the Trump administration in as many days, which has also seen judges reject aspects of its Muslim-centric travel ban.
The government sought dismissal of the case on the grounds that the ACLU had no right to file a petition on behalf of a non-client, contending that granting access would set a precedent for “intruders or uninvited meddlers” to intervene in military operations. It went unsaid that the reason he was in no such position to hire the ACLU or any other representation was the administration’s deliberate decision to hold him anonymously.
In her Saturday ruling, Chutkan called that argument “disingenuous at best, given that the [Defense] Department is the sole impediment to the [ACLU’s] ability to meet and confer with the detainee.” She similarly rejected the administration’s claim that it possesses exclusive authority to determine his disposition – whether to charge him in civilian court, persist in his indefinite military detention, or transferring him to another country – as “both remarkable and troubling.”
Jonathan Hafetz, the ACLU attorney who seeks to represent the anonymous man, hailed Chutkan’s ruling as a defense of the rule of law.
“The ruling properly rejects the Trump administration’s attempt to create a legal black hole for American citizens by denying them access to a lawyer and court,” Hafetz told The Daily Beast. “The ruling is a critical reminder that the Constitution does not give the president a blank check when it comes to the rights of American citizens.”
It is not yet clear how the Trump administration will respond. A Defense Department spokesperson did not have an answer Sunday morning as to whether the Pentagon will seek to challenge Chutkan’s order or permit Hafetz access to the detainee until later Sunday at earliest.
The spokesperson, Navy Commander Sarah Higgins, also affirmed to The Daily Beast that the U.S. military is not holding any other American citizens in custody.
An indication of the extent to which the government was willing to go to block legal access to the man came late last month. In court filings ordered by Chutkan, the Justice Department conceded that at some point in the man’s interrogations, he was read his rights by the FBI and he explicitly requested a lawyer. The government simply ignored the request and portrayed, in court, his thoughts about legal representation as fundamentally inscrutable.
“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,” the Justice Department told the court.
Chutkan on Saturday displayed little patience with that argument. “Given the conditions under which the detainee is currently being held, his request for legal assistance is certainly evidence from which this court could infer a desire to avail himself of the legal system,” she wrote.
But perhaps most significantly, Chutkan explicitly told the Pentagon it cannot transfer the man out of its custody before he consults with the ACLU—a move Hafetz and other observers suspected the administration would seek in order to avoid a court order affirming the citizen’s right to legal representation.
According to The New York Times, the Trump administration is considering sending the American to Saudi Arabia. Whomever the American citizen is, he reportedly holds dual Saudi and American citizenship.
“The fear of judicial scrutiny of its actions,” Hafetz said, “has been the only reason the government has shown any indication of ending this citizen’s indefinite detention.”