Judge: US treatment of American enemy combatant raises troubling questions

A federal judge has ordered the government to say whether an unnamed U.S. citizen held for the past 11 weeks as an enemy combatant in Iraq has been informed of his right to counsel — and whether he has tried to assert that right. 

U.S. District Judge Tanya Chutkan ordered the government to provide the court with the answer to her two questions by 5 p.m. on Thursday, in a minor victory for the American Civil Liberties Union (ACLU), which is seeking to represent the John Doe detainee. 

“He’s a U.S. citizen and it’s been two and a half months and you can’t tell me if he’s been advised of his rights or requested counsel,” said Chutkan, who appeared visibly annoyed throughout a tense and at times combative exchange with Justice Department lawyer Kathryn Wyer. 

{mosads}The Justice Department is seeking to have the case dismissed outright, arguing that the ACLU has no standing to file a suit seeking to represent Doe as a so-called “next friend” — because they do not know who he is and do not have a relationship with him. 

When pressed repeatedly by Chutkan for the answers to her questions, which the judge suggested she needed to determine the issue of standing, the government argued that the court had no jurisdiction over the case — because standing had not been established. 

Chutkan condemned the government’s argument as “circular.” 

The government, she said, is the one withholding the citizen’s identity and simultaneously arguing that the ACLU cannot proceed anonymously. 

She argued that the broader case presented “troubling” questions. 

“As I see it, the government could snatch any U.S. citizen off the street and hold him as an enemy combatant as long as it took,” she said. “That kind of unchecked power is quite frankly frightening.”

Her statements mirrored the reaction of ACLU lawyer Jonathan Hafetz after the hearing, who told reporters: “Every American should be terrified of the position the government was taking today.”

Doe, suspected of fighting for the Islamic State in Iraq and Syria (ISIS), was captured by a Syrian rebel militia and turned over to the American military in Iraq in mid-September. 

He has remained in military custody since, with no indication of when — or if — he will be turned over to the U.S. Justice Department to face criminal prosecution.

The case, which Chutkan said Thursday has no exact legal precedent, has the potential to reshape an already unsettled part of U.S. law that has vexed every administration since 9/11: How to handle U.S. citizens captured fighting for ISIS.

Detainee experts say there is little question that the military has the authority to hold a U.S. citizen or lawful permanent resident as an enemy combatant — a designation which denies the detained their Miranda warning and allows them to be interrogated under military rules.

Although the law is clearer when an American is captured fighting in an active combat theater, rather than carrying out a “lone-wolf” attack in the United States, U.S. policy on American enemy combatants has largely been decided by narrow, individual court rulings.

So far, the Trump administration has more or less followed the model embraced by former President Obama, known as the so-called “hybrid option.”

Under that model, an individual is detained in military custody for an unspecified period of time and interrogated. Then an FBI “clean team” is brought in, which reads the individual their Miranda rights and kick-starts a civilian prosecution.

Wyer argued Thursday that the government is still in a preliminary phase of determining what to do with Doe and that it is not attempting to hold him “indefinitely.” 

When asked by Chatkan how long the government can continue to hold him — “six months? a year?” — Wyer responded that that question was not being considered by the court.

“The U.S. government didn’t snatch this person off the street in Kansas,” she noted. 

Further complicating the question of Doe’s detention, the government must be able to prove that the detainee is a fighter for an enemy force with whom the U.S. is in a state of armed conflict in order to designate a person as an enemy combatant. 

Both the Trump and Obama administrations have claimed that ISIS is an “associated force” covered by the military authorization that Congress passed in 2001, after the 9/11 attacks.

But the courts have not yet weighed in on that rationale, and both conservative and liberal legal analysts say the government is on risky legal footing. 

The issue was not addressed before Chutkan on Thursday. 

Wyer indicated that she intended to comply with the court’s order by 5 p.m.