A U.S. citizen detained without charge as an enemy combatant for nearly four months has finally talked with his would-be lawyers and “clearly” expressed his wishes to challenge his detention, those lawyers tell The Daily Beast.
“He eagerly looks forward to his day in court that’s been denied him thus far,” Jonathan Hafetz of the American Civil Liberties Union told The Daily Beast on Friday.
The detainee’s decision to challenge his detention and retain the ACLU’s legal counsel is a substantial setback for the Trump administration in an extraordinary case governing the extent of its detention authorities.
The U.S. military and Justice Department have gone to substantial lengths to prevent the citizen from challenging his detention, which was first reported by The Daily Beast, even refusing to release his name. The military is holding him somewhere in Iraq.
In a move that underscores the unusual nature of the case, the ACLU filed a challenge to his detention, known as a habeas corpus petition, despite not knowing the man’s identity or whether he desired its aid – something the Justice Department seized upon to throw the case out of court.
The Pentagon did not end up challenging a federal judge’s ruling, on December 23, ordering access for the ACLU to the detainee to determine two critical questions: whether he wants to challenge his detention and, if so, whether he wants the ACLU to represent him.
Hafetz and colleagues Hina Shamsi and Dror Ladin ventured to the Pentagon on Wednesday morning for a secure videoconference with the detainee that the attorneys understood to be unmonitored. It was the 114th day of the man’s detention.
Hafetz declined to discuss their conversation in detail, saying that it was “substantial” and that the detained man was “very thankful that he now has a lawyer” – something the Justice Department in late November admitted denying him.
The detainee spoke English and did not require the aid of a translator, Hafetz said.
On Friday, the ACLU filed court papers affirming their now-client’s desires and moving for the Trump administration to explain, by January 10, its factual basis and legal theory underlying their belief, in seeming contradiction of a 2004 Supreme Court precedent and centuries of Anglo-American law, why they can hold a U.S. citizen in military detention without access to the courts.
Thus far, The Daily Beast has reported that he was captured by U.S. proxies in Syria fighting for the so-called Islamic State. But the U.S. government has not substantially explained the circumstances underlying the detention.
As well, the ACLU filing requests the judge, Tanya Chutkin, to continue to prevent the administration from transferring the detainee to another country until the so-called habeas corpus proceeding is resolved. A transfer, reportedly under consideration by the administration, would permit the administration to escape a judge’s ruling that it cannot hold a U.S. citizen without charge or access to the federal courts.
But the ACLU also declined to resolve the biggest mystery in the case: the U.S. citizen’s name.
“The American citizen expressed concern about his name being released and asked that it not be made public,” Hafetz said.
Court papers now refer to him as John Doe.