For more than seven months, the Trump administration has been unlawfully detaining an American citizen in Iraq. Rather than charge him with a crime or set him free, the government wants to transfer him, involuntarily, to a third country. The ACLU is going to court on Thursday to stop the transfer and fight the government’s dangerous claims that it has the authority to violate an American’s constitutional rights.
The Trump administration claims that the citizen, who was detained in September by Kurdish forces in Syria and transferred to U.S. custody, is a fighter for ISIS — an allegation he denies. The ACLU began representing him in January after a federal court ordered the government to allow us unmonitored access to him. This came after the government insisted, over several months, that it did not need to respect the man’s wishes to challenge his detention or to speak with a lawyer.
After reports emerged that the government was seeking to send the man to Saudi Arabia, Judge Tanya Chutkan of the federal district court in Washington, D.C., ruled in late January that the government must provide notice 72 hours before any transfer. On Monday night, the government filed that notice under seal, with a redacted version made public yesterday. (The public notice redacts the name of the destination country.)
In response, the ACLU immediately filed a challenge to the transfer announcement, with a hearing scheduled for Thursday.
The case has raised high-stakes questions about the extent of the government’s legal authority to wage war and, by extension, detain citizens as “enemy combatants.” The Trump administration wrongly claims that various legal sources give it that power.
First, it alleges that the 2001 Authorization for Use of Military Force, passed in the days after 9/11, gives it the authority to detain ISIS suspects. That statute, however, extends to those responsible for the 9/11 attacks — namely al-Qaida and the Taliban. ISIS didn’t exist at the time, and today it is openly at war with al-Qaida.
The government also claims that a subsequent AUMF, passed in 2002 to authorize the war against Saddam Hussein in Iraq, justifies the detention of our client. By that logic, the government claims it has the authority to indefinitely wage war against anyone it deems a threat in Iraq.
Lastly, the government says that the president’s commander-in-chief authority to detain U.S. citizens gives the military the right to detain the man. That is an evidently dangerous claim that seeks a carte blanche to suspend citizens’ due process rights — anytime, anywhere — by simply invoking national security.
The fact that the government has no authority to detain ISIS members also means that its incorrect allegations against our client are irrelevant. Before this case, no court had considered the legitimacy of the government’s claims that it is authorized to use force against ISIS. However, rather than wait for a ruling, the government prefers to wash its hands of the matter by illegally and forcibly rendering him to another country.
As shown by the recent missile strikes against Syria, this administration does not seem interested in following the rules when it comes to military action. It isn’t surprising that a government that claims it can wage war and detain citizens without limits would want to avoid a court decision that might rein it in. But we aren’t going to allow it a free pass.