On Monday a federal judge challenged the U.S. government to justify the continued imprisonment of an American citizen who has been denied access to a lawyer for over three months.
Washington D.C. – U.S. District Judge Tanya Chutkan has expressed skepticism and frustration over the U.S. government’s arguments for detaining an American citizen for three months. On Monday, at the latest hearing in the case of American Civil Liberties Union v. Mattis, the Justice Department argued that the court had no authority to rule on wartime detentions by U.S. military in an overseas conflict zone. Judge Chutkan seemed to lean in favor of the ACLU’s argument that the man should have access to a lawyer, which he has been denied thus far.
The ACLU is fighting to represent the American who has been accused of fighting alongside the Islamic State in Syria. The U.S military has been detaining the American citizen at a secret prison in Iraq without access to a lawyer or even releasing his name to the public. He 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 rights to a lawyer. Still, the government claims they are not sure he wants to challenge his imprisonment via the courts. 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.
“He wants counsel, which is an assertion and a request that I don’t think I can ignore,” Judge Chutkan said Monday as reported by the Washington Times. Justice Department attorney Kathryn Wyer told the judge it was a “temporary situation” and the government is “trying to resolve this matter expeditiously.” Wyer also stated that the there was no evidence the suspect wanted representation. However, Judge Chutkan was not supportive of this claim.
“He understands enough to say ‘I want a lawyer, I’m not going to say anything until I get a lawyer, and I’m willing to wait until I get a lawyer,’” she said.
This is not the first time in three months the judge has admonished the government. On November 30 the judge also chastised the government for not being prepared and failing to provide vital information for the case.
“You’re not answering my question, and I’m not trying to be impatient but I’m growing impatient,” Chutkan said at the time. “The court feels the need for that information in order to make an adequate determination in this case. … Frankly, I’m amazed you didn’t come to this hearing with that information.”
According to the Washington Times, an anonymous senior administration official with knowledge of the case said the government is still trying to determine what to do with the man. “We don’t want to release someone who is a terrorist. We don’t want to hold someone who can’t be held,” the official told the Times. “We are trying to see if we have all the evidence collected yet.”
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.”
According to Lawfare blog, the ruling will likely look at the Supreme Court’s 2004 decision in Hamdi v. Rumsfeld. In that case, the courts found that at some “reasonable point” a detained American is constitutionally entitled to a habeas corpus petition and access to a neutral tribunal to challenge the legality of their detention. Lawfare writes:
With respect to ACLU v. Mattis, if the court eventually reaches the underlying merits, the government surely will rely on Hamdi and likely also argue that the fact that the the government is detaining the prisoner extraterritorially calls into question the full application of the Constitution to his case.
The court is expected to rule in the coming days on the matter.
As Activist Post previously reported, it is possible that this man is being held under section 1021 of the National Defense Authorization Act (NDAA), the annual military budget. Many of you may remember that the NDAA 2012 contained the controversial section 1021 and 1022, provisions which allowed indefinite detention of American citizens without a right to trial if they are suspected of terrorism.
Unfortunately this disturbing detention of an American citizen is likely already codified into law. No matter how immoral or wrong we believe it to be, the courts are controlled by the same people maneuvering the political show. Individual judges like Chutkan may attempt to push back against the tyranny. Ultimately we must recognize that these violations of liberty are not an exception, but rather part of the standard operating procedure of the State. As long as this centralized power exists we will continue to suffer.
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 and Finding Freedom in an Age of Confusion, Vol. 2
Derrick is available for interviews. Please contact Derrick@activistpost.com
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Image Credit: Getty/ The Daily Beast
PS — If he was fighting for Isis – he Was fighting for the DOD. An easily proven partnership was known amongst any ME country and their inhabitants.
The CIA created the Mujahidin which later morphed into Al Qaeda and Taliban. The DOD created ISIS. We don’t have enough people who don’t like us that we have to create new ones just to support the military-industrial complex?
Da – eta Pravda
“… unless when in cases of rebellion or invasion…”
I do not know of any rebellion besides those that serve within our government who are not keeping the supreme contract they are all Oath bound to support and defend. What about invasions, anyone know of any besides the Illegals who are being shipped here? Are those who serve within our government going to openly declare that an invasion? If not, those words are clear, ““The privilege of the writ of habeas corpus shall NOT be suspended,…” (caps are mine). That is the contract that they operate under.
This government policy of suspending habeus corpus is the start of a downward slope to fascism. Modern democracies, especially those birthed by the British have had habeus corpus as a strong part of citizens’ protections from overly zealous government for over 800 years. To argue against the right of a citizen to rely on such rights is anti democratic, anti rule of law and simply tyrannical!
The corporation is functioning under a continual state of emergency and our constitution has not been in effect since 1871. This is a dog and pony show to pacify the ignorant.
Couple of things to enlighten you. Just because a Domestic Enemy or Traitor to the American people and the USA declares something, or creates a “new” government does NOT make it legitimate or lawful. What it does do is show WHO the Domestic Enemies and Traitors are.
Here, we ARE a Constitutional Republic, and that means that the US Constitution and each state’s Constitutions basically are our governments. The people who SERVE WITHIN our governments are NOT “the” government, but employees, servants – elected, hired, contracted, etc. You see, the powers / authorities that was delegated were NOT delegated to any person, agency; but was delegated to the different branches and to NAMED OFFICES within a branch. The authority belongs to that branch or to that named Office within a branch. The person who serves within that position or agency within a branch, that named office are ALLOWED to use the authority for as long as they do the duties as written, take and KEEP the Oaths. Just like with all contracted positions, they can be removed by the people with whom the contract was created; you know “We the People of the united States”.
Read this and start to understand our legitimate government – then go read the US Constitution, the debates of the times, etc.”
Dr. Edwin Vieira [He holds four degrees from Harvard: A.B. (Harvard College), A.M. and Ph.D. (Harvard Graduate School of Arts and Sciences), and J.D. (Harvard Law School). For more than thirty years he has practiced law, with emphasis on constitutional issues. In the Supreme Court of the United States he successfully argued or briefed the cases:
“This has nothing to do with personalities or subjective ideas. It’s a matter of what the Constitution
provides… The government of the United States has never violated anyone’s constitutional rights…
The government of the United States will never violate anyone constitutional rights, because it cannot violate anyone’s constitutional rights.
The reason for that is: The government of the United States is that set of actions by public officials that are consistent with the Constitution. Outside of its constitutional powers, the government of the United States has no legitimacy. It has no authority; and, it really even has no existence. It is what
lawyers call a legal fiction.
… the famous case Norton v. Shelby County… The Court said: “Anunconstitutional act is not a law; it confers no rights; it imposes no duties. It is, in legal contemplation, as inoperative as though it had never been passed.” And that applies to any (and all) governmental action outside of the Constitution…”
What are the defining characteristics of a limited government? They are its disabilities; what it does not have legal authority to do. Look at the First Amendment… What does it do? It guarantees freedom of speech, freedom of press, freedom of religion. But how does it do that? I quote: “Congress shall make no law abridging the freedom of speech or of the press” etcetera. “Congress shall make no law;” that’s a statement of an absence of power. That’s a statement of
a disability. (End Dr. Vieira quote)
Basically we do NOT have a government, nor are the people serving within it using the DELEGATED authority, so MUST be replaced with those who will. But until the people themselves are educated, the ones who are the governments enforcement arm will continue to commit felonies and Perjury, along with making *terrorists of themselves because they are so DUMBED DOWN that they do not even know that they Oath ALL who serve within government are required to take makes them PERSONALLY responsible for their actions at all levels.
*28 C.F.R. Section 0.85 Terrorism is defined as “the unlawful use of force and violence against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives”.
got’s no rights