U.S. Judge Rules Trump Administration Must Provide Detained American With Legal Counsel

By Derrick Broze

While the Trump administration attempts to strip the citizenship of an American citizen who has been held for more than 3 months, a federal judge has ruled he must be given access to a lawyer.

A federal judge has ruled that the U.S. government must provide a lawyer to an American citizen who is currently being held in secret after being accused of fighting with the Islamic State. The man has not been identified despite being held in a secret prison in Iraq without charge since around September 12 when he reportedly surrendered to U.S.-backed Syrian “rebels.” Meanwhile, court documents reveal that the U.S. military did not discount the possibility of coercing the man into relinquishing his American citizenship and deporting him to Saudi Arabia, where he has dual-citizenship.

The Associated Press reports:

In her ruling, U.S. District Judge Tanya Chutkan denied the Defense Department’s motion to dismiss the matter and ordered the military to let the ACLU “immediate and unmonitored access to the detainee” so that it can determine whether he wants the ACLU to represent him. The judge also ordered the Defense Department not to transfer the detainee until the ACLU tells the court of the detainee’s wishes.

“This is a landmark ruling that rejects the Trump administration’s unprecedented attempt to block an American citizen from challenging his executive imprisonment,” said Jonathan Hafetz, senior staff attorney for the ACLU. “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 New York Times also reported that the government planned to prosecute the man in a civilian court for allegedly providing material assistance to terrorist groups, “but the F.B.I. was unable to assemble sufficient courtroom-admissible evidence against him.” Robert M. Chesney, a national security law professor at the University of Texas, Austin, told the Times that sending the man back to Saudi Arabia is “the most desirable outcome for all parties concerned.” The man’s connection to Saudi Arabia was first reported by The Hill on December 13.

Stripping Citizenship

The Times reported that there has been discussion around sending the man back to Saudi Arabia as part of a deal with the Saudi government and the Trump administration. It remains unclear whether or not the U.S. will require the man to relinquish his U.S. citizenship in exchange for a deal. The ACLU reports:

the government won’t say whether it is considering requiring the detainee to relinquish his American citizenship in exchange for his release from U.S. detention. The filing also states that the government does not believe it is legally required to allow him to consult an attorney before renouncing his citizenship.

The decision would go against a 1967 Supreme Court ruling which stated: “In our country the people are sovereign and the Government cannot sever its relationship to the people by taking away their citizenship.” As the ACLU notes, the only other time this issue has arisen involved the detaining of Saudi-American dual national Yaser Hamdi. However, in that case Hamdi was able to consult with lawyers before deciding whether to renounce his citizenship or challenge his detention in the courts. “Thirteen years after Hamdi had the benefit of counsel and the judicial system before deciding whether to renounce his citizenship, the Trump administration’s ongoing efforts to hide an American citizen from lawyers and the courts are simply unprecedented,” the ACLU writes.

The Fight for Habeas Corpus

Throughout the proceedings of  American Civil Liberties Union v. Mattis, U.S. District Judge Tanya Chutkan has expressed skepticism and frustration over the U.S. government’s arguments for detaining the man. Earlier in December the Justice Department argued that the court had no authority to rule on wartime detentions by U.S. military in an overseas conflict zone. The man has been labeled an “enemy combatant” by the Trump administration despite a lack of evidence to bring charges against the man. At a November 30 hearing, the government revealed that the man asserted his constitutional right to a lawyer.

The issue to be decided in ACLU v. Mattis is whether or not the U.S. government can hold someone indefinitely without a court review. The U.S. government believes it can hold a suspect for a “reasonable period” before deciding whether or not to charge or release the individual. The government also claims that the ACLU cannot represent the man because they have had no contact with him and he has not made a request.

The crux of the case is whether or not the judge will throw out the ACLU’s habeas corpus petition on legal grounds. Habeas corpus is a recourse in law which allows an individual to report an unlawful detention or imprisonment to a court and request that the court order a determination of whether the detention is lawful. The U.S. Constitution specifically includes the habeas procedure in the Suspension Clause (Clause 2), located in Article One, Section 9. This states that “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.”

Derrick Broze is an investigative journalist and liberty activist. He is the Lead Investigative Reporter for ActivistPost.com and the founder of the TheConsciousResistance.com. Follow him on Twitter. Derrick is the author of three books: The Conscious Resistance: Reflections on Anarchy and Spirituality and Finding Freedom in an Age of Confusion, Vol. 1, Finding Freedom in an Age of Confusion, Vol. 2 and Manifesto of the Free Humans.

Derrick is available for interviews. Please contact [email protected]

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