The secret military detention of a U.S. citizen who allegedly fought for Islamic State has posed an unusual legal test for the Trump administration as it struggles to define a policy for dealing with people captured on the battlefield or suspected of terrorism
The Pentagon has yet to release the name of the American in custody. Officials say he surrendered to U.S.-backed militia forces in Syria on or about Sept. 12 and was turned over to U.S. military authorities.
U.S. forces are detaining him as an “unlawful enemy combatant” at an undisclosed location in Iraq, the Pentagon said. U.S. officials have not said when the American will face charges, be given a lawyer or be brought before a judge.
In an attempt to force the issue, the American Civil Liberties Union has filed a habeas corpus petition in U.S. District Court in Washington, arguing that the secret detention violates a U.S. citizen’s rights to see a lawyer and to answer charges before a judge.
“He’s being held basically in a black box, without any way to enforce his rights,” said Jonathan Hafetz, a senior lawyer for the ACLU.
Hafetz said the government can’t hold an American citizen indefinitely without charges or access to the legal system. “They have not indicated what their plans are. We hope they will do the right thing and present him to a court,” he said.
The Justice Department said it was reviewing the ACLU petition and declined to comment further. The Pentagon also declined to comment.
An International Committee of the Red Cross delegate visited the American last week in accordance with the group’s role in military conflicts.
“ICRC confirms that it has been able to visit a U.S. citizen, captured in Syria and currently held by the U.S. authorities, but in accordance with our confidential approach, we are not in a position to comment on the individual’s identity, location, or conditions of detention,” spokesman Marc Kilstein said in a statement.
The government has argued that it has the right to hold enemy combatants indefinitely. But the Supreme Court has twice decided that military prisoners — even those held outside the country — have the right to contest their detention in court.
“All detainees in [Department of Defense] custody are treated humanely and in compliance with U.S. and international law,” said Maj. Ben Sakrisson, a Pentagon spokesman.
The unusual case could provide an indication of whether the administration will follow President Trump’s promises during the campaign last year to send enemy combatants and terrorism suspects to the U.S. military prison at Guantanamo Bay, Cuba.
But indications so far suggest the government wants to bring charges in a civilian court. More than 500 Americans and numerous foreigners have been convicted of terrorism-related charges in U.S. civilian courts since 2001.
According to Defense officials, the American in custody was questioned in a two-step process that civilian courts have allowed in terrorism cases.
U.S. intelligence officials first pressed the detainee for his knowledge of terrorist organizations, planning or active plots. After that, they said, a separate team of FBI agents interviewed him in an effort to obtain evidence that could be used in court.
As the law requires, they informed him of his Miranda rights to see a lawyer and warned that anything he said could be used against him in court.
At that point, the detainee stopped talking, officials said. The details of the interview were first reported by the New York Times.
An estimated 30,000 foreign fighters from around the globe flocked to Iraq and Syria after Islamic State first captured vast parts of the two countries in 2014 and proclaimed an Islamist caliphate.
Although the FBI conducted hundreds of investigations and arrested scores of people for raising money or providing support to Islamic State, relatively few Americans made their way to the front lines as combatants.
One who did, Mohamad Jamal Khweis of Alexandria, Va., was grabbed in western Iraq by Kurdish guerrillas in March 2016 and later turned over to U.S. authorities.
A federal jury convicted Khweis, 27, in June of providing and conspiring to provide material support to Islamic State, and a related firearms count. He faces a maximum sentence of life in prison when he is sentenced on Oct. 13.
A separate terrorism trial began last week in a federal courtroom in Washington.
Ahmed Abu Khatallah, a Libyan, is charged with murder and other crimes for allegedly orchestrating the September 2012 armed attacks on a U.S. diplomatic compound and nearby CIA outpost in Benghazi, Libya, that killed four Americans, including the U.S. ambassador to Libya, J. Christopher Stevens.
No one has been sent to the military prison in Guantanamo Bay in nearly a decade.
The facility was opened in secret after the terrorist attacks of Sept. 11, 2001. About 780 foreigners ultimately were detained there, but the last to arrive was in early 2008.
President George W. Bush and then President Obama transferred, resettled or repatriated nearly the entire prison population, and both sought to close the site. Only 41 detainees remain.
Only one U.S. citizen, Yaser Esam Hamdi, was ever held at the camp, and he was detained there only because U.S. officials didn’t initially realize he was an American. He was repatriated to Saudi Arabia after he agreed to renounce U.S. citizenship. His court appeals first established legal rights for the detainees.
Several of Trump’s top aides, including Atty. Gen. Jeff Sessions and Chief of Staff John F. Kelly, favor keeping Guantanamo Bay open. Kelly, a retired four-star Marine Corps general, oversaw operations at the prison as commander of U.S. Southern Command from 2012 to 2016.
“They’re all bad boys,” Kelly said in January 2016, during his last news briefing in uniform, of the final few dozen still held at the camp. “We have dossiers on all of them. Some of them were more effective in being bad boys than others. I think we can all quibble on whether 13 or 12 or eight years in detention is enough to have them — having paid for whatever they did. But they’re bad guys.”