Judge Sides With ACLU, Ruling American Detainee In Iraq Has Right To Lawyer

By Amy Held

Published December 24, 2017 at 9:59 AM CST

On Saturday a federal judge ruled an American detainee, held for three months in Iraq by the U.S. military without charge, has the right to counsel. In this 2008 photo, detainees are seen through the door of their cell at the U.S. detention facility at Camp Cropper in Baghdad, Iraq.

"Somewhere in Iraq, a United States citizen has been in the custody of the U.S. armed forces for over three months."

That is how a federal Judge on Saturday begins her ruling, describing the situation of a never-charged American classified as an enemy combatant, as she ordered the Pentagon provide the prisoner with "immediate" access to a lawyer.

The still-unnamed man was captured by the Syrian militia in mid-September and handed over to the U.S. military as a suspected member of the Islamic State.

A couple weeks later, the American Civil Liberties Union filed a habeas corpus petition and seeking to represent the man, who, by the government's own account, requested an attorney after being read his Miranda rights.

The Defense Department argued that the circumstances did not warrant the ACLU's having immediate access to the detainee.

But in a case shrouded in secrecy, what exactly those circumstances are remains unclear. And the case is reviving thorny issues around the government's wartime powers weighed against individuals' civil liberties.

In her at-times-blistering ruling, Judge Tanya S. Chutkan of the Federal District Court of the District of Columbia denied the Pentagon's motion to dismiss the ACLU's petition and ordered that it give the group "immediate and unmonitored access to the detainee."

Read the ruling below.

Chutkan described the Defense Department's position in denying the ACLU access to the detainee "to be disingenuous at best."

She went on, "the Department's position that his request should simply be ignored until it decides what to do with the detainee and when to allow him access to counsel is both remarkable and troubling."

It remains unclear how long the military plans to hold the detainee. It is also unclear whether the government will comply with the ruling.

Justice Department Spokesman Wyn Hornbuckle told The New York Times, "We're reviewing the ruling and will decline to comment."

The ACLU welcomed the decision.

"This is a landmark ruling that rejects the Trump administration's unprecedented attempt to block an American citizen from challenging his executive imprisonment," ACLU Senior Staff Attorney Jonathan Hafetz told NPR's Ryan Lucas in a statement. "Ensuring citizens detained by the government have access to a lawyer and a court is essential to preserving the Constitution and the rule of law in America."

The detainee was captured Sept. 12 and by the end of the month the ACLU had sent a letter to Secretary of Defense James Mattis and Attorney General Jeff Sessions, expressing concern about the case and reminding them of the detainee's constitutional right to counsel.

The Times reports, "officials familiar with the matter have said he is a dual citizen of the United States and Saudi Arabia who was born on American soil to visiting Saudi parents and raised in Saudi Arabia."

The Times has reported that national security officials in the Trump administration were considering transferring the detainee to Saudi Arabia in a move that could potentially involve the man renouncing his American citizenship.

In her ruling, Chutkan ordered that the Defense Department not transfer the detainee to another country until the ACLU learns about and informs the court of his own wishes.