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 [email protected]
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