Donald Trump can’t disappear American citizens.
That’s the result of a ruling handed down on December 23 from U.S. District Judge Tanya Chutkan stating that the Department of Defense can’t keep an American citizen captured in Syria this September indefinitely detained without charge and without access to a lawyer.
Chutkan’s ruling was welcomed by the American Civil Liberties Union, which had challenged the detention and filed a habeas corpus suit against the Defense Department in early October.
“Ordering the government to allow the ACLU access to this American is an essential protection of his constitutional rights, and a major victory for the rule of law against unchecked executive power,” ACLU attorney Jonathan Hafetz, who represented the organization in the case, said in a statement.
The detainee told attorneys from the ACLU on January 3 via video conference that he intends to challenge his detention and wants them to represent him.
That decision, along with the ruling, marks a major legal defeat for the Trump administration, which had tried to deny the still-unnamed U.S. citizen his right to counsel and had also entertained transferring him to either Iraqi or Saudi custody without talking to a lawyer.
That would have been a departure from existing U.S. law, which, based on a Bush-era Supreme Court decision, holds that while American citizens can be detained as enemy combatants, they can’t be denied the right to see a lawyer and challenge the reasons for their detention.
“A state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens,” Justice Sandra Day O’Connor wrote in the 2004 majority opinion.
If the judge had ruled in the government’s favor in December, Hafetz told Splinter, “the government could effectively disappear American citizens and leave no chance to challenge their detention.”
The detainee’s rights have been confirmed by the court. The next step is to fight for his freedom.
“Now that our client has secured the judicial review that the government attempted to block,” Hafetz said in a statement on Friday, “he looks forward to establishing the illegality of his detention.”
The DoD did not provide comment for this article despite repeated requests.
The facts of the case are sparse and short on detail. After being captured by the Syrian Democratic Forces on September 12, 2017, the detainee, who is a dual U.S.-Saudi national, was quickly transferred to American custody. He was visited by the Red Cross and, after being questioned by the FBI, asked for a lawyer. That’s the extent of the information confirmed in court filings with the District Court.
After more than three months in detention on Iraqi soil, no charges have been brought against the detainee. Prosecution for material support of terrorism would be easy, Gabor Rona, a visiting professor of law at the Benjamin N. Cardozo School of Law at Yeshiva University, told Splinter—and if the American man in custody hasn’t been charged it’s likely due to the weakness of the government’s case.
“If they think he was fighting for or had anything to do with ISIS, gave a cigarette to ISIS, if they think they can’t do that then it’s very perplexing to me as to what basis they have to hold him as enemy combatant,” Rona, who provided a supporting document to the ACLU in the case, said.
Hafetz also said an absence of charges is “a strong suggestion that there’s no case against him.”
As an American citizen, the detainee presents a problem. The Trump administration clearly wants to detain him as an enemy combatant for the foreseeable future, and Hafetz said the government confirmed his client asked for a lawyer and was not allowed to have one.
What’s more, Hafetz said the federal government has used circular logic to try to circumvent due process in the courts by keeping the facts of the case secret and then telling the ACLU that it couldn’t challenge the detention because it doesn’t have those secret facts. Hafetz called this “a black hole for indefinite detention.”
The recent ruling should change that. The judge made clear that the ACLU must be given “temporary, immediate, and unmonitored access to the detainee” so that the organization could see if the man wants the ACLU’s help.
The ruling also serves as a clear check on the government’s detention powers — at least for American citizens.
“Whatever this man may or may not have done, he has basic rights,” said Human Rights Watch senior Iraq researcher Belkis Wille. “If he did what they say he did, it should be proven, they should notify his loved ones. He has due process rights.”
The ACLU on Friday requested that Chutkan continue to block the detainee’s transfer to another country while the organization’s lawyers work to challenge his detention.
Blocking the transfer was no small part of the December order. Chutkan cut off one of the DoD’s easiest avenues of solving the problem of the American detainee being held in Iraq: simply moving him out of U.S. custody.
There were two targets for the move—transferring him to Iraqi custody or to Saudi Arabia—both of which were less than ideal, as the potential for abuse in the Iraqi system is high, and the courts are rife with corruption, according to Wille.
“It’s hard to see how anyone would face a fair trial” in Iraq, she said. (Like Rona, Wille also sent the court a statement in support of the ACLU’s position.)
Transferring the detainee to Iraq would amount to locking up an American citizen abroad—with full knowledge he could be tortured—and throwing away the key.
“At times defendants have alleged they’ve been tortured, but there’s no action by the judge to investigate, the trial moves forward,” Wille said.
As Human Rights Watch Middle East researcher Adam Coogle pointed out, transferring the detainee to Saudi Arabia could be an even more dangerous prospect than a transfer to Iraqi custody. The detainee is a dual national with Saudi Arabia — at least some of his family lives there — and the country would presumably take responsibility for the man from the U.S. The DoD, in other words, would transfer the detainee to Saudi custody and wash American hands of the entire problem.
But Saudi Arabia’s court system isn’t exactly known for its fairness — and a new anti-terror law passed this year has made penalties for what the law vaguely classifies as “terror” much higher and more restrictive.
“The trials are pro forma,” Coogle said. “There’s not really a genuine attempt to find guilt or innocence. I don’t want to say the verdict is known in advance—but it seems that way.”
With those repressive regimes in the department’s sights, it’s not hard to see how the Defense Department’s impulse to move the detainee to Iraq or Saudi Arabia could be seen as disappearing him, and the ACLU said as much in a filing from December 22. The DoD was “seeking an end-run around the bedrock protections” of counsel by transferring the detainee, the organization wrote.
Chutkan’s December order instructed the DoD to make the detainee available to lawyers before any transfer but stopped short of barring such a transfer completely: the department was only “to refrain from transferring the detainee” until attorneys from the ACLU could tell the court what the detainee wanted to do. Friday’s request for further relief would continue the order’s effect.
Though there’s no evidence of any wrongdoing on behalf of the detainee, he’s still being held without charge. Hafetz said he fears the DoD is attempting to create a “dangerous” legal precedent that the federal government is not constrained by the Constitution in dealing with American citizens it portrays as enemy combatants.
Rona, the law professor, isn’t so sure the case rises to the height of actually disappearing people.
“I’ve been doing international human rights work for a long time,” said Rona. “Disappearance is more egregious—there’s unaccountable detention, followed by torture and murder.”
Simply by acknowledging the detainee’s existence, Rona argued, the government has already met a higher standard than a regime that would seek to simply erase someone’s existence.
But only just. Rona acknowledged that the DoD’s attempts to keep the detainee from counsel and the lack of any information around the identity and detention of the man were indicative of a push from the Trump administration at secret detention that could erase the identities of American citizens.
“What the government is claiming is still outrageous and taking us a further step down a road that looks like disappearance,” said Rona. “That’s something I have not seen the U.S. government do before.”