Justice Department officials don’t believe they have enough evidence to charge an American citizen and suspected member of the Islamic State who was captured in Syria last month, but the United States will face immediate legal challenges if he is not released and is detained without trial.
The issue threatens to reignite court battles fought during the George W. Bush administration when the Supreme Court ruled that U.S. citizens cannot be held indefinitely as members of al-Qaeda or other terrorist groups under war legislation Congress passed after the Sept. 11, 2001, attacks. The court ruled that they are entitled to counsel and the right to challenge the evidence against them before a neutral arbitrator.
Nearly seven weeks ago, on Sept. 12, the man apparently surrendered to a rebel group in Syria, which handed him over to U.S. forces, according to officials familiar with his case. Since then, his name, age and other personal details, including a second country of citizenship, have been withheld, even from U.S. lawyers seeking to represent him. He is being held in a Defense Department “short-term facility” in Iraq, according to the Pentagon.
The case could also provide lawyers with a way to challenge the authority of the government to detain fighters captured in Syria using that same 2001 war legislation, because the Islamic State did not exist at the time.
Earlier this month, at the request of the American Civil Liberties Union, which wants to represent the captured fighter, U.S. District Judge Tanya S. Chutkan in Washington gave the department until Monday to tell her in writing why the organization should not be given access to him to advise him of his rights and provide him with legal representation.
“It’s extraordinary for them to hold a U.S. citizen without access to counsel or a court and without charges,” said Jonathan Hafetz, the ACLU attorney who filed the motion. “It’s truly unprecedented and a clear breach of the Constitution.”
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.” 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.