Civil liberties advocates are worried about the fate of an American citizen accused of fighting for ISIS in Syria who has been held for almost two months in a secret Iraq prison without access to a lawyer.
The American Civil Liberties Union is fighting to represent an American man who has been accused of fighting alongside the Islamic State in Syria. The U.S military has been detaining the American citizen at a secret prison in Iraq without access to a lawyer or even releasing his name to the public. He has been labeled an “enemy combatant” by the Trump administration despite a lack of evidence to bring charges against the man.
We went to court asking a judge to protect the citizen’s constitutional rights, including the right not to be imprisoned without charge and the right to challenge his detention in court. The Trump administration has told the court that it doesn’t have to respect these essential due process rights.
The Washington Post recently revealed that the man was captured in Syria on September 12. He reportedly surrendered to a rebel group in Syria before being given to the U.S. military. According to The Washington Post, as told by “anonymous officials familiar with the case,” the Justice Department does not believe they have enough evidence to bring charges against him. However, if the military does not charge him they will face legal challenges. The ACLU is attempting to lead the way, but the organization is facing heavy push-back from the military.
“A Defense Department spokesman, Air Force Maj. Ben Sakrisson, said last week that the government continues to withhold the detainee’s identity and circumstances because ‘it’s still an ongoing operation,’” the Post reports. “Asked to elaborate, he said, ‘there are still a number of U.S. agencies looking at the circumstances of how he came to be detained’ and what should happen to him now.”
The anonymous officials told the Post the man has been questioned by “an interagency interrogation team” and the FBI. The suspect apparently refused to answer questions and has requested a lawyer.
He was then read his Miranda rights, and he again refused to cooperate and repeated his demand for a lawyer, according to people familiar with the case. An additional complication emerged — web postings suggested he may have done some reporting in Syria as opposed to being a fighter, these people said. But U.S. officials are skeptical of the idea that he is a journalist, they said.
The man now stands in legal limbo. The U.S military seems lacking in evidence to charge him, and it is unlikely an Iraqi court would charge him. However, if he is returned to Iraq he will likely face torture and/or unfair trial. The Post notes that current U.S. law prohibits releasing a suspect to a country where they are likely to face torture.
The ACLU says the Pentagon and Department of Justice have ignored their requests for access to the U.S. citizen so they could advise him of his rights and offer him legal representation. The ACLU says they worry because the man “is facing grave threats to his liberty and possibly his life.” The Trump administration continues to oppose allowing anyone access to the man. As the ACLU notes, “even George W. Bush’s attorney general and former federal district court judge, Michael Mukasey, ruled that the government’s national security interests cannot override an American citizen’s right to a lawyer.”
The Trump administration is indeed taking a dangerous step towards the complete erosion of civil liberties and protections from violations. It has not been stated by the DOJ or the U.S. military, but it is possible that this man is being held under section 1021 of the National Defense Authorization Act (NDAA), the annual military budget. Many of you may remember that the NDAA 2012 contained the controversial section 1021 and 1022, provisions which allowed indefinite detention of American citizens without a right to trial if they are suspected of terrorism.
President Obama signed the bill in late 2011, making a special note in his presidential signing statement. “Moreover, I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens,” Obama wrote. Obama said his administration would interpret section 1021 as complying with the Constitution and other applicable law. However, the fear of many activists at the time was that another president might come along and decide to make use of this section 1021 to detain and imprison activists or journalists accused of “terrorism” or “extremism.” Perhaps, someone like Donald Trump?
As of the most recent version of the NDAA 2018, the indefinite detention provision is still contained in the most recent version of the NDAA 2018. It has passed the House and the Senate and will make its way to Trump’s desk soon to be signed into law. Is it possible that the Trump administration has been holding this American citizen under this particular provision? Whatever mechanism the U.S. is using to hold this man, it is wrong. He deserves a lawyer, a day in court, and judgement by a jury of his peers. Nothing less.