ACLU Will Represent an American Citizen in U.S. Military Detention Abroad

Almost four months after an American citizen was secretly detained by the U.S. military in Iraq, and three months after the American Civil Liberties Union filed a motion demanding access to him, ACLU lawyers were finally able to meet with the man to ask whether he wants to challenge his detention with ACLU representation.

The citizen, who the government admits requested an attorney months ago, is grateful to finally have the assistance he had long requested, and confirmed that he wants to fight his detention with the ACLU’s help. Today, we filed an update informing the judge overseeing the case of his wishes. Because he has concerns about his name becoming public, he asked that we not disclose any identifying information about him.

The meeting, which took place by video at the Pentagon on Wednesday, came after a federal judge, in a late-night ruling on Dec. 23, ordered the government to provide the ACLU with immediate, unmonitored access to the detainee, who hadn’t been aware of the ongoing case until shortly before he met the ACLU lawyers. The government has been holding him since September as an “enemy combatant,” claiming, without presenting any evidence, that he fought for ISIS. After news reports revealed that the U.S. government was imprisoning an American citizen, the ACLU filed a habeas corpus petition with the federal district court in Washington, D.C., demanding the government justify his detention. We also filed an emergency motion demanding that the government provide us with contact with him.

The government fought back in court, seeking to dismiss our petition. It argued that the ACLU had no standing to challenge the citizen’s detention because we had never met the man and did not know his wishes. In a ruling against the government, Judge Tanya S. Chutkin, saw through its Catch-22 argument: “The court finds the Defense Department’s position to be disingenuous at best, given that the Department is the sole impediment to the ACLUF’s ability to meet and confer with the detainee.”

She continued:

"Having informed the detainee of his right to counsel, and the detainee having asked for counsel, the department’s position that his request should simply be ignored until it decides what to do with the detainee and when to allow him access to counsel is both remarkable and troubling.”

Judge Chutkan’s decision ordered the government to allow the ACLU to meet the citizen for to determine whether he wants to challenge his detention, and if so, whether he wishes to be represented by the ACLU. The order, which came on the heels of a report that the government was considering transferring the man to Saudi Arabia, also prohibited the government from carrying out any transfer before the ACLU’s update. In today’s filing, we also asked the judge to extend the prohibition on transferring the man while the challenge to his detention is pending.

The detention of this American citizen is unlawful. As we explained in a letter sent to the Justice Department and the Pentagon in September, the government does not have domestic legal authority to hold alleged ISIS fighters as enemy combatants in military detention. The 2001 Authorization for Use of Military Force extends to people who supported al-Qaeda, the Taliban, or associated forces at the time of the 9/11 attacks, when ISIS did not exist.

In any event, the government has presented no evidence that the citizen fought for ISIS. Even if a court were to interpret the 2001 AUMF — or the 2002 AUMF authorizing the invasion of Saddam Hussein’s Iraq — as extending to ISIS, this man has a constitutional right to know the government’s reasons for detaining him and to challenge its evidence. Instead, the government is going to great lengths to deny him his due process rights. We have asked the court to order the government to swiftly supply its basis for detention, which the citizen will have the opportunity to rebut.

If the government actually has any evidence of criminality against our client, it should charge him in a federal court, where constitutional safeguards apply. In this case, our judicial system has thus far worked: The court has repudiated the executive branch’s frightening notion that it has the power to hold a citizen unlawfully, in secret, and without access to a lawyer.

Let’s hope it continues to check such notions. The government has acted at every turn to deny a citizen his basic rights and day in court. His struggle to vindicate those rights is just getting underway.

Add a comment (17)
Read the Terms of Use

Dr. Timothy Leary

Every man deserves the best defense money can buy.

Anonymous

let's be clear: by"government" it is meant DOJ/HS/ICE. DOJ needs to be "reined in"!

Anonymous

Not a fan of the Tea Party or hate groups, but since many Americans in those groups are being labeled extremists and even terrorists (in some cases of violence, rightly so). What prevents the U.S. government from doing this to a citizen here on U.S. soil?

If judges are being spoon-fed "evidence" by a single branch of government - without challenge - aren't all of us at risk? Even the most law-abiding citizens or even inventors being robbed of patents, etc?

Anonymous

Absolutely. There is a lot going on behind the scenes that we should all be worried about.

Anonymous

As one that grew up during the Cold War, as students, we were taught by our teachers, parents and leaders like Ronald Reagan that nations that did these things, like Kangaroo Courts and show-trials, were "Evil Doers" or the "Evil Empire".

What separated the "good-guy" Americans from evil despots was the polar opposite of these practices (that Americans practice today). We led the world in integrity with our WW2 era "Nuremberg Trials" in Germany.

We were taught we were better than despots because nobody was above the constitutional rule of law - not the Joint Chiefs of Staff and not even a president. We had an Independent Judiciary that "checks & balances" the other two branches - including the military leaders.

Ronald Reagan wanted any government official that tortured or perpetuated cruel treatment on any person, for any reason, to be criminally prosecuted. Reagan signed a legally binding treaty to enforce this treaty by the U.S. government.

Within the past 15 years, for the first time in American history we have been condemned by the International Red Cross (a Christian organization), Ammesty International and several religious organizations for torture and human rights abuses. We have been violators of the Geneva Conventions - which protects U.S. troops in future conflicts.

Why do these Pentagon leaders have absolutely no fear of criminal penalty for violating American laws and treaties?

Anonymous

It will take another country to bring criminal charges to the International Criminal Court. Or, a country like Iraq, Yemen, etc. could issue arrest warrants to be tried criminally by their own laws. Until this happens, the US will keep pillaging the world and justify it through its own interpretation of laws.

For our future generations, the history books will not be too kind to us.

gerda

the nuremberg travesty

Anonymous

You've brought up some excellent points. As for why U.S. leaders have no fear of penalty -- IMO at least part of that is tied to 'the dumbing down of America'. Another factor is likely the rise in evangelicals influence in our government. And sadly, there are many who flat out no longer support the ideals and principles we were taught, and no longer support or agree with our Constitution.

Montgomery Granger

Sadly, this American traitor deserves neither your attention nor services. He is in fact an unlawful combatant in the Global War on Terror, and therefore, by International and US law, is not entitled to extra legal privileges. He is not entitled to habeas corpus and should never have been read any rights nor offered to speak with an attorney. He could have been lawfully shot dead on the battlefield. There is a reason for war time law, and that is to preserve and protect innocent people and non-military facilities. Unlawful combatants by their existence do not recognize war time law, and therefore have not EARNED the protections therein. Rights cannot exist without responsibilities, and it is the responsibility of the combatant to fight within the rules and laws established and recognized by the civilized world. Remember the six of eight German saboteurs who landed dry-foot on US soil in 1942, were denied habeas corpus, were tried by military commission, and then executed by electric chair less than eight weeks after their capture. None of them had hurt a fly nor damaged any property, but were found to be in violation of the Geneva Conventions and the Law of Land Warfare. They were deemed to be spies with the intent and means to kill and to destroy property. What's different now? The correct location for this unlawful combatant is the US military detention facility at Guantanamo Bay, Cuba, where he may be lawfully held, without charge or trial, just as if he were a lawful combatant POW, as per Geneva and the Law of War, "Until the end of hostilities." Sincerely, Montgomery J. Granger, Major, US Army, Retired. Author, "Saving Grace at Guantanamo Bay: A Memoir of a Citizen Warrior."

Anonymous

And you know this because...?

Pages

Stay Informed