The Trump administration is refusing to grant legal access for an unnamed American citizen held incommunicado in military custody as an enemy combatant, all by putting his would-be attorneys in a legal paradox.
And in a potential precedent for future indefinite military detentions in the young Trump administration, it warns the court against opening “the floodgates to ‘intruders or uninvited meddlers’”—thereby asserting that military jailers can better determine a detainee’s interest than can defense attorneys.
Justice Department attorneys fighting off an attempt by the American Civil Liberties Union (ACLU) to challenge the seven-week-old detention of the citizen argued in a federal court filing Monday that the ACLU lacks the right to challenge the detention because it is not representing him. Both the man’s detention and the ACLU challenge were first reported by The Daily Beast.
“Unlike numerous other cases where a close relative has sought habeas relief on a detainee’s behalf, ACLUF [the ACLU Foundation] has no significant relationship with this detainee, and it also cannot show that it would act in the detainee’s best interests when it has never conferred with the detainee in order to learn what those interests are,” the Justice Department team argued, saying the ACLU can “only speculate” that the detainee wishes it to represent him legally.
It continued: “As an initial matter, ACLUF’s petition is improper because it was filed on behalf of an anonymous petitioner, John Doe, without the Court’s leave. Parties initiating an action in federal district court generally must identify themselves by name in their pleadings.”
The reason the ACLU doesn’t have a “significant relationship” with the detainee is a Catch-22: The Trump administration isn’t naming him, thereby hindering him or a proxy from hiring an attorney. He is currently detained in Iraq.
The filing came as the secretaries of state and defense testified on Capitol Hill about their authorities under the 2001 Authorization to Use Military Force (AUMF), which is the legal grounding for the detention of the U.S. citizen, who was captured around Sept. 12 fighting for the so-called Islamic State in Syria.
National security attorneys have warned the administration that the strained interpretation of the pre-ISIS AUMF creates an opportunity for an ISIS fighter detained under it to challenge the entire legal basis of the war—which may explain the Justice Department’s opposition to the ACLU petition.
In the filing, the Justice Department attorneys contend that their obligations are satisfied by permitting the International Committee of the Red Cross access to the unnamed citizen enemy combatant, “which can assist detained individuals with contacting their family if they so wish,” and from there hire an attorney.
An ICRC representative confirmed to The Daily Beast on Oct. 2 that it had visited the U.S. citizen but did not elaborate, citing the organization’s long-standing arrangement of trading access from governments to people they detain for public silence. The Justice Department filing says the citizen has received two ICRC visits thus far.
The ACLU blasted the government contention as woefully insufficient.
“The government says Red Cross access is enough, but the Red Cross does not provide legal assistance, and the mere visit by a Red Cross official does not satisfy an American citizen’s bedrock right to challenge his detention before a judge,” said attorney Jonathan Hafetz.
“The government must end this secret and lawless detention immediately, and it should not transfer the American to a country where he could be exposed to abuse or an unfair prosecution.”
Hafetz made that latter argument because the Justice Department pointedly noted that seven weeks after the man was detained in Syria by U.S. proxy forces, it has yet to reach an internal decision on what to do with him. The New York Times reported that administration officials are not certain if they possess sufficient evidence to charge him with a crime.
It has spent seven weeks attempting to figure out his disposition without reaching a decision, something the ACLU blasted as a gambit to “circumvent the courts” while the government scrambles to find a basis to keep the unnamed citizen locked up.
But the Justice Department said the government was still in an unspecified “initial reasonable period” to make a decision about what will happen to the U.S. citizen and added that granting the citizen legal counsel access in Iraq would “intrude on U.S. security protocols.”
Nor does the Trump administration concede that the ACLU is acting on behalf of the detainee at all: “there is a genuine danger here that ACLUF is pursuing its own agenda, or simply asserting a ‘generalized interest in constitutional governance,’ rather than adhering to the detainee’s best interests,” it writes.
“Allowing attorneys to seek habeas relief for anonymous clients whom they have never met, and whose intents and desires are completely unknown to them, would open the floodgates to ‘intruders or uninvited meddlers’ running to court in the name of the rights of unwitting strangers who may want to have nothing to do with them,” Justice Department attorneys write.
It is unclear when a federal judge will rule on whether the citizen can challenge his detention—or do so with ACLU representation.
Before such a ruling, Hafetz reiterated that “the military’s indefinite detention of an American citizen without access to a judge or lawyer is an affront to the rule of law.”