This Judge Isn't Buying The Trump Admin's Excuses For Holding A U.S. Citizen 'Incommunicado'

“What the government is suggesting is an end run around the right to habeas," said U.S. District Judge Tanya Chutkan.
U.S. District Judge Tanya Chutkan
U.S. District Judge Tanya Chutkan

WASHINGTON ― A federal judge on Monday aggressively questioned a Justice Department attorney about the Trump administration’s contention that it can continue holding an unnamed U.S. citizen ― who has asked for an attorney ― out of the reach of lawyers who wish to represent him.

U.S. District Judge Tanya Chutkan said she was “not sure” it was “conscionable” that she could allow the U.S. government to continue holding the American, who was taken into custody in Iraq three months ago, without giving him the ability to challenge his prolonged detention as unlawful, through what’s known as a habeas corpus petition.

“What the government is suggesting is an end run around the right to habeas,” Chutkan said. “He wants counsel, which is an assertion and request that I don’t think I can ignore.” 

The American Civil Liberties Union had filed a habeas corpus petition on behalf of the unnamed American, an alleged fighter for the Islamic State militant group. Chutkan, an Obama appointee, indicated on Monday that she’d made her ruling in the case “as quickly” as possible.

Justice Department attorney Kathryn Wyer, representing the Trump administration, argued that the government was trying to resolve the situation quickly. Wyer said the American “didn’t give any indication of urgency” to the FBI when they met with him and when he requested a lawyer

Wyer suggested the unlikely possibility that the American might know the details of a legal battle involving the habeas rights of prior Guantanamo detainees, or that he knows the difference between habeas corpus and his Miranda rights ― a distinction most people are unfamiliar with. She suggested it was possible that the American only wanted a lawyer for questioning, not to assert his habeas corpus rights.

Chutkan didn’t seem to buy that.

“He says he wants counsel ― isn’t that enough?” she asked. How on earth, the judge said, would this person be able to exercise their habeas corpus rights if they’re effectively being held incommunicado?

“Under those circumstances, the right to habeas is meaningless,” Chutkan said.

Wyer argued that standing was still an issue, and that the ACLU was a “third-party stranger” to the case. But Chutkan said the ACLU isn’t just some person off the street ― it’s a group with “extensive experience” with these types of cases.

Jonathan Hafetz, the ACLU lawyer, said he was “flabbergasted” by the government’s arguments, and said the government was asking for a “blank check” to hold U.S. citizens overseas for indefinite periods of time, even when they’d requested a lawyer.

Chutkan shook her head in agreement several times during Hafetz’s presentation, and had no questions for him. She didn’t explicitly say how she’d rule, but left little doubt that she’d come down against the government.