The Trump Administration Just Admitted a Secretly Detained American Has Asked for a Lawyer – But It Won’t Give Him One

An American being held without charges by the U.S. military in Iraq has asked for an attorney, the ACLU finally learned last night following an extraordinary court hearing. The government is resisting our efforts to make contact with the man so he can challenge his detention, in an outrageous violation of the basic rights guaranteed to every American by the Constitution.

The military has held the “unnamed detainee” — as the government refers to him in its filings — somewhere in Iraq since mid-September as an “enemy combatant” for allegedly fighting in Syria with ISIS (although the government hasn’t presented any evidence of that). The Pentagon and Justice Department ignored our initial request to offer him legal assistance. We then filed a habeas corpus petition on his behalf in court in Washington, demanding that the government justify the man’s detention.

At the first hearing in the habeas case Thursday, the judge started off by asking the Justice Department attorney two questions that she thought would be easy: whether the citizen has been advised of his constitutional rights and if he has asserted his right to an attorney. The government attorney demurred, saying that the Defense Department had not released that information.

“You’re not answering my question, and I’m not trying to be impatient, but I’m growing impatient,” said Judge Tanya Chutkan after some back-and-forth. “I’m amazed you didn’t come to this hearing with that information.”

Judge Chutkan ordered the Justice Department to provide her with the answers to her questions by 5 p.m. — an unusually tight deadline for a judge to impose on the government.

At 5 p.m. on the dot, we got our answers: he was advised of his Miranda rights and he asked for an attorney. In the government’s filing, we also learned more details about what’s been happening to this American while he’s been in U.S. custody. He has been interrogated by FBI agents “for law enforcement purposes,” and they advised him of his right to remain silent and his right to an attorney. The filing also implied that the American has been questioned by other people, presumably for intelligence purposes.

The government’s response said:

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 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.

Now that we have this information, we’ve asked the court to order the government to ask the American if he wants to challenge his detention in court and whether he wants the ACLU to represent him or have the court appoint other attorneys for him. The government has opposed this, continuing in its effort to get our case dismissed.

The government is arguing that we don’t have standing to file on the citizen’s behalf because we haven’t been in touch with him. But, as Judge Chutkan pointed out at the hearing, that’s a circular argument and a barrier of the government’s own making, since it refuses to even name the citizen. She also noted that the ACLU is not just some random person trying to get involved in a case without any connection.

“This is what they do,” she said.

The fact that the government is refusing to provide the unidentified citizen with an attorney after he asked for one is unacceptable, especially in light of the fact that he has been detained for so long. The government has said that it is working “diligently” to determine what it ominously and ambiguously calls his “final disposition.” In the meantime, the judge in the case on Friday scheduled an additional hearing for December 8.

“It’s been two and a half months — I'd like to know how long you think you get to do this to a United States citizen… Six months? A year?” Judge Chutkan asked. “Basically, it’s just, ‘Trust us, we know what we're doing.’”

The International Committee of the Red Cross was given access to the American to ensure that his detention conditions adhere to the Geneva Conventions, and the government argues that he could have asked the ICRC to convey his desire for an attorney to his family. But securing a lawyer isn’t the ICRC’s job. And maybe his family can’t be located, or maybe they are afraid of retaliation if the family gets involved. Maybe they don’t have the ability to find a lawyer in the United States.

Judge Chutkan recognized how dangerous the government’s claims are.

“The government could snatch any U.S. citizen off the street and hold them as an enemy combatant… for as long as it took to come to some ‘final disposition,’” she posited. “That kind of unchecked power is, quite frankly, frightening.”

View comments (46)
Read the Terms of Use

Terri Scofield

Thank Barack Obama for his New Years Eve 2011 signature on the reauthorization of the NDAA. This version contained - for the first time in history, in Section 1021 - authorization to indefinitely detain American citizens sans charges. Many of us spent a great deal of time, money, energy and effort fighting this provision before it was passed by Democratic and Republican members of congress. How many besides this man are currently being held in the US and abroad, that we are not hearing about?

Anonymous

You know full well Republicans wrote that law. The Republican lawmakers threw that into a larger bill and basically threatened to hold back military funding if Obama didn’t sign. Obama signed and earned everyone what was in the bill. That’s what you get when you have Republicans in the government.

Anonymous

For legitimate wartime cases, there are usually witnesses and accusers, that could withstand a real judicial process.

For example: on a real battlefield, if one or more persons were firing at Coalition troops from a building and the building had 10 people inside. There is strong circumstantial evidence that would likely result in a conviction. The Coalition troops could file depositions or afidavits under penalty of perjury, as to what they witnessed.

Based on the government's own records, obtained by the ACLU, roughly 86% of detainees were SOLD to Coalition troops for enormous financial bounties. Apparently tribal chieftains sold adversarial tribe members or people they didn't like.

None of the 86% or more were even near a battlefield. These same government officials now want a blank check of trust!

Anonymous

I don't get how the attorney came to court and didn't know if rights were given but now after the 5pm deadline all of a sudden ACLU knows everything. I wonder if they can look into Obama and Hillary unmasking people during Trumps campaign.

Anonymous

Look into what now?

Only crime needing investigating is Trump/Russia collusion, and Mueller is getting to the bottom of it :)

Anonymous

There are also quasi forms of detention like "electronic fencing" and "employment tampering" that have been used inside the United States on U.S. citizens.

The most famous case, the Roberts U.S. Supreme Court reprimanded former Attorney General John Ashcroft for abusing the "Material Witness Statute" - it as essentially ruled a fraudulent abuse of power. Ashcroft was never criminally indicted and never served any prison time.

These tactics resulted in a quasi form of prison that was actually far worse than real prison in a real justice system. To this day we don't know how many innocent people suffered premature death, suicide or complete financial ruin. None of these innocent Americans have received an official apology or been financially compensated.

Ashcroft would (secretly) go to your employer and force them to fire you. The employer was threatened with criminal prosecution if they told you why. If Ashcroft allowed you to earn an income at all, it was usually in extremely dangerous professions "supervised" by extremely corrupt homeland security officials.

It literally destroyed livelihoods, reputations and families - without charge, trial, judge or jury. The Roberts Court does allow civil lawsuits to go after Ashcroft & friends personal assets, but there is not a single prosecutor willing to charge them with crimes.

Since the DOJ won't prosecute, the U.S. government has also prevented the International Criminal Court from pursuing criminal indictments.

Anonymous

This is precisely why the people were so opposed to a standing army after the American Revolution. They could foresee that such an army would eventually turn on its citizens. Due Process either applies to every citizen regardless of what they are accused of or it is completely worthless.

Richard

This is the beginning of the end. We have lost control of our government. They do whatever and go unchecked, and we allow it. wake up you ass holes. Better start stock piling your food, guns and ammo. You may need them. Wonder how far they can push us.

Anonymous

I'm an ACLU voter - which Trump is not - but there is little concern over a huge conflict if interest.

We have a former FBI Director investigating a case involving another FBI Director.

Both the FBI and U.S. Department of Justice have a long track record of violating their own oath of office to follow the U.S. Constitution.

Former Qwest CEO, Joseph Nacchio, claimed in a Washington Post artice that illegal spying was taking place more than 6 months before 9/11 during Mueller's leadership. Nobody has answered these questions.

Anonymous

Screw him, he is helping our enemy. Bullet to the head, no rights for traitors.

Pages

Stay Informed