The American Civil Liberties Union on Thursday challenged the detention of a U.S. citizen who was picked up on the Syrian battlefield for allegedly fighting with Islamic State militants. The Pentagon insisted it was holding the man legally.
The unidentified American, who has not been charged, surrendered to a U.S.-backed militant group in Syria around Sept. 12. He has been detained in Iraq since then as an unlawful enemy combatant, according to U.S. officials.
“He’s being held in secret without access to counsel or a court,” said Jonathan Hafetz, a senior staff attorney with the ACLU in New York. “Essentially, he’s being held in a legal black hole with no way to enforce his basic constitutional rights as an American citizen.”
The U.S. military has not publicly disclosed the man’s name or exactly where he is being held. It has confirmed that the International Committee of the Red Cross visited with him last week.
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The Defense Department said it doesn’t comment on pending litigation entitled John Doe v. Gen. James N. Mattis.
But Maj. Ben Sakrisson, a Pentagon spokesman, said the military has the right to detain “captured enemy fighters” as part of the conflict against the Islamic State. He cited a 2004 Supreme Court decision regarding a captured Taliban fighter in Afghanistan that confirmed a “U.S. citizen may lawfully be subject to military detention in armed conflict under appropriate circumstances.”
The ACLU filed the 13-page petition for a writ of habeas corpus in U.S. District Court in Washington, saying the American is being unlawfully detained. Such petitions are used to challenge the basis for someone’s detention, its duration or confinement conditions.
The ACLU argues the U.S. military has no legal authority to hold Islamic State fighters in military detention under war powers provided under the 2001 Authorization for the Use of Military Force, which Congress passed after the Sept. 11, 2001, attacks.
In a letter last week to Defense Secretary Jim Mattis and Attorney General Jeff Sessions, the ACLU said those war powers cannot be stretched to cover the current battle against the Islamic State in Iraq and Syria. It said the same about a 2012 defense policy law that is the basis for America’s detention of terrorism suspects.
The ACLU claims that even if the existing war powers applied to the Islamic State conflict — which is fiercely disputed among lawyers, national security experts and lawmakers in Congress — the detained American still must be granted his basic legal rights as a citizen of the United States. The ACLU said it does not know the man’s identity and has not been in contact with him.
“Military detention of this U.S. citizen is both unlawful and unnecessary,” said Hina Shamsi, director of the ACLU’s National Security Project. “Fighting with a group like ISIS is a very serious allegation, and unlike the military, the federal court system unquestionably has jurisdiction to decide his case. Instead of continuing to deny a U.S. citizen his constitutional rights, the Trump administration has an opportunity to do the right thing here.”