WASHINGTON — A visibly frustrated federal judge ordered the Trump administration to tell her — by 5 p.m. Thursday — whether an American citizen the government has detained incommunicado for months has been advised of his constitutional rights and whether he has asked for legal representation.
The U.S. government accuses the man of fighting for the Islamic State, but so far has refused to release his name or charge him with any crime. Instead, the military has imprisoned him in Iraq, without access to a lawyer, since mid-September. The man has asked for a lawyer at least twice, The Washington Post reported last month.
The American Civil Liberties Union filed a habeas corpus petition — a formal way to challenge an individual’s imprisonment — on the man’s behalf on Oct. 5, after he had already been in prison for several weeks. If the group prevails, it could force the government to allow its lawyers to represent the detainee and to meet with him privately.
The Trump administration has argued that because the ACLU’s lawyers do not know the prisoner, they do not have legal standing to represent him in court. But U.S. District Judge Tanya S. Chutkan was unimpressed by that argument in a Thursday morning hearing.
Chutkan asked Kathryn Wyer, the Justice Department attorney arguing on behalf of the government, at least four times whether the prisoner had been advised of his constitutional rights and whether he had asked for a lawyer. Wyer initially dodged the question, telling the judge that the Defense Department has not made formal statement on those matters, and attempted to shift the focus to whether the ACLU has standing to represent the detainee.
Chutkan soon grew visibly frustrated with Wyer. She repeatedly criticized the government’s “circular reasoning” in arguing that the ACLU cannot represent the detainee because they do not know him — while simultaneously keeping him imprisoned incommunicado and refusing to release his name.
After a lengthy back and forth, Chutkan warned Wyer that she was “growing impatient.” Eventually, Wyer said she needed to confer with the Defense Department before answering the questions, and the judge set a 5 p.m. deadline for the government to respond.
Near the end of the hearing, Chutkan proposed moving the deadline up to 3 p.m. She said the Justice Department lawyers should have been prepared to answer basic questions about the detainee’s access to legal counsel and it shouldn’t take a long time to get those answers now. But she agreed to keep the deadline at 5 p.m after Wyer said she had a 2:30 p.m. doctor’s appointment.
Asked by HuffPost if the Justice Department opposed its responses being made public, Wyer declined to comment.
Chutkan’s order was a victory for the ACLU, which has been urging the court to order the government to provide the group’s lawyers with private access to the detainee. Jonathan Hafetz, the ACLU lawyer who argued the case on Thursday, accused the government of seeking a “blank check” to secretly detain American citizens and erect roadblocks preventing them from accessing the courts. Without access to a lawyer, Hafetz said, the “right of habeas means nothing.”
The Trump administration has not explicitly claimed that the American detainee does not have habeas rights. Instead, Wyer, citing a 2008 Supreme Court decision, argued the military can hold a prisoner captured in a warzone without charge as an “initial, temporary situation” until figuring out what to do with him.
There is no prescribed number of days that this temporary situation can last. Chutkan suggested that two and a half months is too long to hold the prisoner without providing him access to a lawyer. Asked to provide an estimate of how much longer the military would hold the unnamed American citizen without letting him see a lawyer, Wyer said she didn’t have a “prediction.”
Maj. Ben Sakrisson, a Defense Department spokesman, told HuffPost the military is “exercising the utmost care and consideration in this situation and will make a decision on the disposition of this detainee’s custody in the near future, consistent with U.S. and international law.”
The government also disputes that the detainee has been held “incommunicado,” since he has been visited twice by representatives from the International Committee of the Red Cross. If he wanted a lawyer, Wyer suggested on Thursday, he could have asked the ICRC to ask his family to get him one.
The ICRC’s mandate is to oversee detention conditions, not to help prisoners get access to counsel. Because the group’s communications with prisoners are confidential, it is impossible to know whether the American ISIS suspect asked the ICRC representative to reach out to his family. It is possible, Hafetz said, that he doesn’t have family, that he wouldn’t want to expose his family to retaliation, that they wouldn’t want to help him, or that the ICRC simply couldn’t find any family members.
The judge appeared on Thursday to largely agree with the ACLU’s arguments. The government’s position on this case risks setting a precedent where it can pick up any American off the streets and hold him as an enemy combatant indefinitely without access to legal counsel, warned Chutkan. “That kind of unchecked power is, quite frankly, frightening.”
“Basically,” Chutkan said, “it’s just: ’Trust us, we know what we’re doing.’”