Photo
The Syrian city of Raqqa in September. An American citizen accused of being an Islamic State fighter surrendered in Syria that month and has been detained in Iraq since. Credit Delil Souleiman/Agence France-Presse — Getty Images

AUSTIN, Tex. — The story has a Kafkaesque quality: For nearly two months, the United States government has refused to identify an American suspected of being an Islamic State fighter who is being detained in Iraq.

We may learn more about his story on Thursday when a Federal District Court judge in Washington is scheduled to hear arguments on whether the government, by refusing to identify the man, is effectively frustrating his constitutional right to a judicial review of his detention.

The government is expected to argue that it has the authority to hold the man as an “enemy combatant.” It will also ask Judge Tanya Chutkan to dismiss a lawsuit filed by the American Civil Liberties Union seeking a writ of habeas corpus on the unnamed citizen’s behalf because the group has no relationship to or connection with him.

But even if Judge Chutkan rules against the government and allows the A.C.L.U.’s suit to go forward (as she both can and should), the government has already won a far more important and alarming victory: It has avoided even a preliminary judicial hearing in the case for 11 weeks. Where the liberty of American citizens is concerned, the courts can — and must — move faster.

According to news accounts, the man surrendered in Syria on Sept. 12 to rebels affiliated with the Syrian Democratic Forces, reportedly telling them that he had been fighting alongside the Islamic State. A few days later, the Syrians turned the man over to the United States military.

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The case has presented a serious quandary for American officials. The Pentagon wants the Justice Department to prosecute him, but Justice officials have been reluctant to take custody of him without more evidence. The man, meantime, has languished in an Iraqi jail, reportedly asking for a lawyer on several occasions, but with no contact with the outside world beyond two visits from the Red Cross.

All the while, the government has refused to identify the man — which, by design or unintended effect, has greatly complicated the effort to challenge his detention. This is because lawyers who seek to represent him don’t know who he is and can’t obtain permission from him or from family members to proceed on his behalf.

The man’s difficulties in obtaining judicial review are especially problematic because it is not at all obvious that his detention is lawful. Although the Supreme Court ruled in Hamdi v. Rumsfeld in 2004 that the government could detain an American fighting for the Taliban in Afghanistan until the end of hostilities, there are three problems with extending that case to cover this one.

First, the rationale for the Hamdi ruling was based on Congress’s authorization of military force against the perpetrators of the Sept. 11 attacks. But it remains an open question whether that authorization, enacted long before the Islamic State existed, also allows the government to use military force against that group and its members.

Second, even if the 2001 authorization does allow the use of force against the Islamic State, a 1971 law requires a clearer statement from Congress to permit the detention of American citizens, which that 2001 authorization arguably lacks, at least with respect to the Islamic State.

And third, and most important, the Hamdi case held that the Constitution’s due process clause guarantees citizen detainees a meaningful opportunity to contest the factual basis for their detention before a neutral decision maker. Clearly, the man being held in Iraq has had no such chance.

In light of these concerns, on Oct. 5, the A.C.L.U. filed a habeas petition ostensibly on the man’s behalf. The government has argued that the A.C.L.U. should not be allowed to proceed because it cannot demonstrate that it is the man’s “next friend” — in other words, that it has the necessary permission from him or his closest relatives. The A.C.L.U.’s lawsuit thus appears to present a superficially irreconcilable tension between a citizen’s constitutional right to judicial review and the constitutional limitations on the power of the federal courts, which cannot hear lawsuits brought by plaintiffs who lack “standing,” including a direct, personal stake in the outcome of the proceeding.

In fact, there’s an easy way for Judge Chutkan to resolve this case: She can simply order the government to ask the prisoner if he authorizes the A.C.L.U. (or any other person or group, else, for that matter) to proceed on his behalf. Assuming he would say yes, the court could then proceed to settle the legality of his detention.

But even if that’s the outcome of Thursday’s hearing, the government will have detained a citizen for at least 11 weeks before even having to provide such a basic judicial process. In ordinary criminal cases, the Supreme Court has held that the Constitution requires suspects to be brought before neutral magistrates within 48 hours of their arrest. Such a short window is, of course, impractical for individuals picked up by the military overseas.

But if 48 hours is too short, 11 weeks is far too long. Once a habeas petition is filed, courts should give the government days, not months, before requiring it to defend the detention of its own citizens without charge.

After all, without the judicial review that the government has so far been able to avoid, how can we be so sure that the prisoner is, in fact, an “enemy combatant”? And what’s to stop the government from holding any of us without charge for 11 weeks, as well?

Continue reading the main story

AUSTIN, Tex. — The story has a Kafkaesque quality: For nearly two months, the United States government has refused to identify an American suspected of being an Islamic State fighter who is being detained in Iraq.

We may learn more about his story on Thursday when a Federal District Court judge in Washington is scheduled to hear arguments on whether the government, by refusing to identify the man, is effectively frustrating his constitutional right to a judicial review of his detention.

The government is expected to argue that it has the authority to hold the man as an “enemy combatant.” It will also ask Judge Tanya Chutkan to dismiss a lawsuit filed by the American Civil Liberties Union seeking a writ of habeas corpus on the unnamed citizen’s behalf because the group has no relationship to or connection with him.

But even if Judge Chutkan rules against the government and allows the A.C.L.U.’s suit to go forward (as she both can and should), the government has already won a far more important and alarming victory: It has avoided even a preliminary judicial hearing in the case for 11 weeks. Where the liberty of American citizens is concerned, the courts can — and must — move faster.

According to news accounts, the man surrendered in Syria on Sept. 12 to rebels affiliated with the Syrian Democratic Forces, reportedly telling them that he had been fighting alongside the Islamic State. A few days later, the Syrians turned the man over to the United States military.

The case has presented a serious quandary for American officials. The Pentagon wants the Justice Department to prosecute him, but Justice officials have been reluctant to take custody of him without more evidence. The man, meantime, has languished in an Iraqi jail, reportedly asking for a lawyer on several occasions, but with no contact with the outside world beyond two visits from the Red Cross.

All the while, the government has refused to identify the man — which, by design or unintended effect, has greatly complicated the effort to challenge his detention. This is because lawyers who seek to represent him don’t know who he is and can’t obtain permission from him or from family members to proceed on his behalf.

The man’s difficulties in obtaining judicial review are especially problematic because it is not at all obvious that his detention is lawful. Although the Supreme Court ruled in Hamdi v. Rumsfeld in 2004 that the government could detain an American fighting for the Taliban in Afghanistan until the end of hostilities, there are three problems with extending that case to cover this one.

First, the rationale for the Hamdi ruling was based on Congress’s authorization of military force against the perpetrators of the Sept. 11 attacks. But it remains an open question whether that authorization, enacted long before the Islamic State existed, also allows the government to use military force against that group and its members.

Second, even if the 2001 authorization does allow the use of force against the Islamic State, a 1971 law requires a clearer statement from Congress to permit the detention of American citizens, which that 2001 authorization arguably lacks, at least with respect to the Islamic State.

And third, and most important, the Hamdi case held that the Constitution’s due process clause guarantees citizen detainees a meaningful opportunity to contest the factual basis for their detention before a neutral decision maker. Clearly, the man being held in Iraq has had no such chance.

In light of these concerns, on Oct. 5, the A.C.L.U. filed a habeas petition ostensibly on the man’s behalf. The government has argued that the A.C.L.U. should not be allowed to proceed because it cannot demonstrate that it is the man’s “next friend” — in other words, that it has the necessary permission from him or his closest relatives. The A.C.L.U.’s lawsuit thus appears to present a superficially irreconcilable tension between a citizen’s constitutional right to judicial review and the constitutional limitations on the power of the federal courts, which cannot hear lawsuits brought by plaintiffs who lack “standing,” including a direct, personal stake in the outcome of the proceeding.

In fact, there’s an easy way for Judge Chutkan to resolve this case: She can simply order the government to ask the prisoner if he authorizes the A.C.L.U. (or any other person or group, else, for that matter) to proceed on his behalf. Assuming he would say yes, the court could then proceed to settle the legality of his detention.

But even if that’s the outcome of Thursday’s hearing, the government will have detained a citizen for at least 11 weeks before even having to provide such a basic judicial process. In ordinary criminal cases, the Supreme Court has held that the Constitution requires suspects to be brought before neutral magistrates within 48 hours of their arrest. Such a short window is, of course, impractical for individuals picked up by the military overseas.

But if 48 hours is too short, 11 weeks is far too long. Once a habeas petition is filed, courts should give the government days, not months, before requiring it to defend the detention of its own citizens without charge.

After all, without the judicial review that the government has so far been able to avoid, how can we be so sure that the prisoner is, in fact, an “enemy combatant”? And what’s to stop the government from holding any of us without charge for 11 weeks, as well?



Nytimes

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