ACLU Will Challenge Transfer, Hearing Scheduled for Thursday

April 17, 2018

WASHINGTON — The Trump administration has filed a notice that it intends to transfer an American detained by the U.S. military in Iraq since September to another country. The 72-hour notice, which was required by a federal district court, was filed under seal last night, and a redacted version was filed today. The name of the destination country is redacted.

The American Civil Liberties Union, which represents the U.S. citizen in his habeas corpus case challenging his detention, said that it will fight the transfer in court. The judge set a filing deadline of Wednesday at noon and scheduled a hearing for Thursday at 10 a.m.

“The Trump administration has been detaining this American citizen unlawfully for more than seven months, and forcibly rendering him to another country would be an unconscionable violation of his constitutional rights,” said ACLU attorney Jonathan Hafetz, who will argue in court Thursday. “The government has no legal authority to detain this U.S. citizen in the first place, and it clearly lacks any legal authority to transfer him to the custody of another government. He should either be charged or freed, not handed over to an unnamed foreign government.”

The U.S. is detaining the American as an “enemy combatant” for allegedly being an ISIS fighter, an accusation the American has denied in court filings.

In the case, the ACLU has argued that the executive cannot circumvent Congress by imprisoning Americans based on statutes authorizing military force for different wars against different adversaries.

The government has claimed that it can detain the citizen under the 2001 Authorization for Use of Military Force (AUMF) passed by Congress shortly after the 9/11 attacks, the 2002 congressional authorization for the Iraq War, and unilateral presidential power to imprison Americans indefinitely for national security purposes.

The 2001 AUMF authorized the military to capture and detain people who were part of or supported al-Qaida and the Taliban and engaged in hostilities against the U.S. or its allies. The ACLU has argued that the 2001 AUMF cannot be used to cover ISIS because it did not exist in 2001 and is openly at war with al-Qaida. The Supreme Court has only upheld the military’s power to detain a U.S. citizen under the 2001 AUMF in a case where a man was captured while fighting alongside Taliban forces in Afghanistan.

Today’s transfer notice filed by the government is here:
https://www.aclu.org/legal-document/doe-v-mattis-governments-notice-filing-redacted-declaration-pursuant-april-17-2018

All documents filed in the case are here:
https://www.aclu.org/cases/doe-v-mattis-challenge-detention-american-us-military-abroad

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