Nearly nine months after it first detained an American citizen as an enemy combatant, the Trump administration has quietly conceded both that holding the still-anonymous man without charge is untenable and that it lacks the evidence to charge him.
The downside, from his lawyers’ perspective, is that the administration’s latest solution is to release the man into Syria.
His attorneys consider the administration’s gambit, revealed in court filings late on Wednesday, a sick, unfunny joke that effectively condemns the man to death.
“What the government is offering our client is no release – it's a death warrant. This is a disgraceful way to treat an American citizen. Now, our fight for our client's right to due process has also become a fight for his right to life,” said Jonathan Hafetz, an American Civil Liberties Union attorney who represents a man known only as John Doe.
In its two-page unclassified filing, the Justice Department said it intends to release Doe to a town in Syria that it identified in a classified annex. It told the court that it intends the transfer to occur Saturday night. Doe is a captive of the U.S. military somewhere in neighboring Iraq.
Conspicuously, the intended transfer would occur about two weeks before the administration and Hafetz are scheduled to appear in a D.C. federal court to finally argue the merits of detaining the man in the first place, a court date the Trump administration has spent months and many legal filings and appeals attempting to forstall.
In September, The Daily Beast broke the story of the man’s detention after he allegedly surrendered to the Syrian forces operating as the U.S.’ proxy in the war-torn country. The government has claimed the man is an Islamic State fighter, something the ACLU has said he denies, explaining instead that he had “sought to understand and report about the conflict in Syria.”
Doe is the first enemy combatant of Donald Trump’s presidency, and many legal observers looked to the case as a bellwether for wartime detentions in the Trump era.
At every stage, the administration fought John Doe’s access to the court system, despite a 2004 Supreme Court ruling guaranteeing it. It sought to deny the ACLU the ability to represent him; it denied Doe access to attorneys even after he requested a lawyer in custody; it sought to stop the ACLU from even talking to the man after a judge ruled the ACLU could represent him. At every stage, the administration lost.
After the administration lost the battle for Doe’s ability to challenge the basis of his detention – a process known as habeas corpus, a foundational aspect of the legal system America inherited from England – it sought to circumvent a potentially embarrassing court fight by transferring him to Saudi Arabia. The ACLU fought, saying that the only solutions that respect Doe’s constitutional rights as a U.S. citizen are for him to be charged with a crime or released. There, again, the government lost, paving the way for the June 20 habeas corpus hearing – and now his potential release in Syria.
“The government has effectively admitted that it has no reason to continue detaining our client and that he does not pose a threat. But instead of offering a safe release, they want to dump an American citizen on the side of the road in a war-torn country without any assurances of protection and no identification,” Hafetz said in a statement.
On Thursday, a senior Pentagon official, Mark E. Miller, shed a little more light on how the U.S. intends to release John Doe. Miller stated in court papers that it will release Doe near where the Syrian Democratic Forces initially detained him, with instructions that he is not to be impeded. The military proposes to provide Doe with “$4,210 in cash,” the amount he had when detained, a new cellphone “in its original packaging,” “sufficient food and water for last for several days,” and his “temperature appropriate” clothing.
Unless the ACLU wins another imminent court fight, John Doe will soon be a free man – albeit one left to his fate in the middle of a warzone.