American accused of fighting for ISIS will get legal counsel, judge says

Posted at 5:01 PM, Dec 24, 2017
and last updated 2017-12-24 17:01:48-05

A federal judge ruled Saturday night that the US Defense Department should allow a US citizen detained as an “enemy combatant” in Iraq immediate access to a legal counsel.

The unnamed American citizen who has been accused of fighting on behalf of ISIS in Syria has been in custody of US armed forces for over three months with “no contact or communication with anyone except government personnel” and representatives from the Red Cross, according to court documents.

In her order, Judge Tanya S. Chutkan of the US District Court for the District of Columbia required the department to give the American Civil Liberties Union access to the unnamed detainee to determine if he wants the advocacy group or a court-appointed attorney to challenge his detention.

Last month, the American Civil Liberties Union filed a lawsuit requesting that the man be given access to counsel and demanding that the Trump administration justify his continued detention without charges. The Justice Department says the ACLU has no standing to sue because the group has not proved that the individual wants it to sue on his behalf.

The individual, whose precise location has not been disclosed, surrendered to US-backed militia forces in Syria and was turned over to US forces in mid-September, according to court documents.

The Defense Department has not said how long it expects to hold the detainee, according to court documents.

He’s met with the Red Cross twice, but has otherwise been held incommunicado with the outside world — another fact that the judge had appeared troubled by during two oral arguments with counsel.

“His statements indicate that not only does he want counsel, but that he is waiting for counsel to be provided. This would certainly explain why he may not have asked the Red Cross for assistance in obtaining counsel,” Chutkan wrote Saturday.

The Trump administration had tried to argue that the ACLU has no standing to sue because the group had not proved the individual actually wants to challenge his detention, but Chutkan disagreed, saying the ACLU has “demonstrated that it is dedicated to the detainee’s best interests.”

The ACLU hailed Chutkan’s decision in a statement.

“Ordering the government to allow the ACLU access to this American is an essential protection of his constitutional rights and a major victory for the rule of law against unchecked executive power,” said ACLU attorney Jonathan Hafetz, who argued in court on the issue earlier this month.

The Justice Department has not yet commented on the decision. It may appeal the ruling to the DC Circuit Court of Appeals.

Late last month, the Justice Department revealed for the first time that the man had, in fact, asked his interrogators for an attorney and was told it was “unknown” when he would receive one.

The judge also ordered the Defense Department to not transfer him until the court is notified of his wishes.