A U.S. citizen who has been held in military custody in Iraq for 11 weeks refused to talk to FBI interrogators without a lawyer after he was warned of his Miranda rights to remain silent and have a lawyer present, the Justice Department told a federal judge on Thursday.
“The individual stated he understood his rights, and said he was willing to talk to the agents but also stated that since he was in a new phase, he felt he should have an attorney present,” the department said in a court filing Thursday afternoon. “The agents explained that due to his current situation, it was unknown when he would be able to have an attorney, and the individual stated that it was OK and that he is a patient man.”
The filing came in response to an order by Judge Tanya S. Chutkan of the U.S. District Court of the District of Columbia, after a contentious hearing earlier on Thursday during which she warned that the Trump administration seemed to be claiming “unchecked power that is, quite frankly, frightening.”
The case centers on an American who was captured by a Syrian militia in mid-September, apparently fighting for the Islamic State, and turned over to U.S. military forces. Although the International Committee for the Red Cross has visited the detainee twice, the government has kept secret even the most basic facts about him, including his name.
But a senior administration official has told The New York Times that the detainee was born in the United States to foreign parents and raised in an unidentified Middle Eastern country. The official also said that after being interrogated for intelligence purposes, the detainee was read the Miranda warning and had not talked since then.
But Chutkan said on Thursday that she did not want to rely on news reports and wanted the government to disclose such information.
The detainee has raised a dilemma because national security officials believe the man was an Islamic State fighter and do not want to release him, but they lack sufficient evidence to charge him with a terrorism-related crime, officials have said.
At the same time, keeping him in long-term wartime detention without trial as an enemy combatant is seen as unpalatable inside the government, in part because it would give a judge an opportunity to rule that the congressional authorization to fight al-Qaida does not extend to the Islamic State.
The hearing centered on a habeas corpus lawsuit filed by the American Civil Liberties Union on Oct. 5 on behalf of the man. The rights group is asking Chutkan to order the government to give its attorneys access to the detainee and, more broadly, to declare that his continued indefinite detention without charges is unlawful.
But the Justice Department has argued that the ACLU has no standing to bring the lawsuit because it has no relationship with him and has not even gained permission from his relatives to represent his interests in court. For that reason, it said, Chutkan lacks jurisdiction and must dismiss the case.
During the hearing, Chutkan, a 2014 appointee of former President Barack Obama, signaled discomfort with that position. She accused the Justice Department of employing “circular reasoning” since the government’s own actions have prevented him or his relatives from having contact with the attorneys.
The judge also expressed incredulity that the government, 2 1/2 months into the man’s detention, was still trying to decide what to do with him, asking whether there was any limit to how long officials could take.
“I don’t have an answer,” a Justice Department attorney, Kathryn Wyer, replied. She said the government was “diligently” working on the problem.
The judge also suggested the government was saying it could “snatch any U.S. citizen off the street and hold him as an enemy combatant in another country” indefinitely without letting him or her talk to a lawyer. She then made her comment about frighteningly unchecked power, and she also portrayed the government as essentially saying, “Just trust us; we know what we’re doing.”
Wyer pushed back, emphasizing that the government “did not snatch this person up in Canada,” but rather took custody of him on a battlefield. Citing a 2008 case about Guantánamo detainees, she said the Supreme Court had said that the government has a right to take some time to decide what to do with prisoners captured in wartime before they may file habeas petitions.
Jonathan Hafetz, an ACLU lawyer, told the judge that the case was a “nightmare scenario” and urged her not to dismiss the case, saying that at a minimum she should ask the detainee whether he wanted to file a habeas corpus petition and, if so, wanted the ACLU to represent him.
But Wyer argued that Chutkan lacked authority to carry out even that kind of intervention if the ACLU had no standing to file the case in the first place.
The court filing suggested that U.S. officials had not raised the issue of a habeas corpus case with the detainee, saying the Justice Department was “not currently aware of any additional information regarding the individual’s wishes in connection with his invocation of constitutional rights or pursuit of remedies in U.S. courts.”