After more than three months, an American citizen held in U.S. custody in Iraq will finally see a lawyer. The man, whom the Pentagon believes to be an Islamic State fighter, has waited in military detention without outside contact beyond visits from the International Committee of the Red Cross. As a federal judge has now recognized, it is well past time that he be allowed to exercise his constitutional right to contest his detention in court.
Many of the facts of the man’s case remain in the dark - including his name. According to reports, Syrian rebel forces captured him around Sept. 12 and delivered him to the U.S. military. He has remained in its custody since. Detaining him indefinitely would risk a potentially damaging court battle over the government’s legal authority.
Officials are now considering whether to transfer him to Saudi Arabia, where he also holds citizenship. There’s precedent to suggest the man might have to give up his status as an American citizen as part of the bargain: During a similar transfer in 2004, the government required SaudiAmerican detainee Yaser Hamdi to relinquish his U.S. citizenship.
Throughout this process, the man has yet to meet with a lawyer.
If the man gives up his citizenship before he meets with a lawyer, the transfer could raise murky legal questions. What’s clear, however, is that the detainee has a right to counsel if he remains in the Pentagon’s custody. To be sure, courts have found that detainees captured in wartime might not be able to exercise habeas corpus right away. But as Chutkan recognized, that doesn’t mean the government can put off a constitutional right for more than three months with no justification.
The Washington Post