The phrase “enemy combatant” conjures up an image of a person, usually a foreign national, infiltrating the country during a time of war, to spy or wreak havoc, or, more recently, fighting for a stateless group like al-Qaida or the Taliban. The government captures the person and detains him, usually in a military prison, inside or outside the United States.
What rights a detained enemy combatant enjoys has been the subject of several Supreme Court decisions, most notably Hamdi v. Rumsfield, 542 U.S. 507 (2004).
In the decision the Supreme Court ruled a detained enemy combatant may petition a federal court to have it review the evidence supporting his detention. He is also entitled to counsel. That the enemy combatant may be an alien and may be detained abroad is irrelevant.
Behind the ruling were the government’s policies of warehousing assorted persons in Guantanamo Bay in deplorable conditions and trying the persons before military tribunals. The policies were widely condemned then and now.
It so happens Hamdi was a U.S. citizen. A 1971 statute provides “(n)o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.” 18 U.S.C. § 4001(a). The military captured Hamdi in Afghanistan, allegedly fighting for the Taliban.
In 2001 Congress authorized the President “to use all necessary and appropriate force against those … persons he determines planned” the 9/11 terrorist attacks “or harbored such” persons. Pub. L. 107-40, 115 Stat. 234 (2001). Necessary and appropriate force includes the capture and detention of citizens like Hamid.
The authorization gave cover to our 2001 expedition into Afghanistan. A second authorization in 2002 justified the use of force against Iraq, then governed by Saddam Hussein.
But recently we have been fighting ISIS. Can the authorizations be used to justify the United States detaining incommunicado persons who fight for ISIS? A federal court may give us an answer.
According to the media, around Sept. 14, 2017, Iraq turned over to our military an ISIS soldier who is a U.S. citizen. The government tagged him an enemy combatant, but nothing else is known about him — his name, his whereabouts or his actions. He has not been charged in a court of law and does not have access to counsel.
In early October the ACLU filed a petition for a writ of habeas corpus as a “next friend.” It wants the military to provide it with prompt access to the American to inform him of his rights and to afford him legal assistance. It also wants the military to transfer him into civilian custody to face criminal charges or release him. ACLU Foundation v. Mattis, 17-cv-2069 (D.D.C.).
In support of a transfer, the ACLU points out the terms of the authorizations do not apply to ISIS. The group did not exist in 2001 and 2002 and in fact opposes al-Qaida and Iraq.
Federal courts are very qualified to try terrorist suspects. Since 9/11 the government has successfully prosecuted more than 620 individuals on terrorism-related charges. Those prosecutions have come with the full protections of the Fourth and Fifth Amendments, such as the right to counsel and the right to a jury trial.
What does the government say about the ACLU’s petition? The organization lacks standing, because the unidentified citizen and it do not have a “relationship” and it does not know his wishes. On the merits the government claims to be working “diligently” to determine the citizen’s “final disposition.” Until that disposition, the government has the authority to detain him indefinitely and without access to counsel.
The judge hearing the case was skeptical of the government’s arguments. Not having a relationship is a barrier of the government’s choosing. It refuses to provide access to the American or reveal any information about him. And, the ACLU is not some person “who has walked off the street,” wanting to get involved in the case. This “is what they do.”
On the merits the judge was even sharper. Working diligently was “just ‘Trust us, we know what we’re doing.’” The government’s logic would enable it to “snatch any U.S. citizen off the street and hold (him) as an enemy combatant … for long as it took to come to some ‘final disposition.’ That scenario, that kind of unchecked power is, quite frankly, frightening.”
The judge made those comments 15 days ago in open court without resolving the issues. She sought more information from the government about the citizen. The ACLU is willing to have the government ask the American whether he wants to challenge his detention and, if so, whether he wants the ACLU or other counsel to represent him.
The unidentified citizen has been held almost three months, without any due process, not even access to counsel. Our government should not drop a citizen into a black hole, no matter what his alleged misconduct is.
Scott Forsyth is a partner at Forsyth & Forsyth and serves as legal counsel to the local chapter of the NYCLU, but the views expressed herein are his own. He may be contacted at 585-262-3400 or [email protected]