What Should Trump Do With the US Citizen Seized in Syria and Held in Iraq as an “Enemy Combatant”?

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It’s nearly a month since my curiosity was first piqued by an article in the Daily Beast by Betsy Woodruff and Spencer Ackerman, reporting that a US citizen fighting for ISIS had been captured in Syria and was now in US custody. Ackerman followed up on September 20, when “leading national security lawyers” told him that the case of the man, who was being held by the US military as an “enemy combatant,” after surrendering to US-allied Kurdish forces fighting ISIS in Syria around September 12, “could spark a far-reaching legal challenge that could have a catastrophic effect on the entire war against ISIS.”

At the time, neither the Defense Department nor the Justice Department would discuss what would happen to the unnamed individual, although, as Ackerman noted, “Should the Justice Department ultimately take custody of the American and charge him with a terrorism-related crime, further legal controversy is unlikely, at least beyond the specifics of his case.” However, if Donald Trump wanted to send him to Guantánamo (as he has claimed he wants to be able to do), that would be a different matter.

A Pentagon spokesman, Maj. Ben Sakrisson, told Ackerman that, according to George W. Bush’s executive order about “war on terror” detentions, issued on November 13, 2001, and authorizing the establishment of military commissions, “United States citizens are excluded from being tried by Military Commissions, but nothing in that document prohibits detaining US citizens who have been identified as unlawful enemy combatants.”

However, as Ackerman explained, “Keeping the unnamed American detained by the military — according to several attorneys with deep experience with post-9/11 detention-law questions — risks a showdown in court over the very foundations of the war against ISIS,” because the only legal basis for the US to be engaged militarily against ISIS is the Authorization for Use of Military Force (AUMF), passed by Congress just after the 9/11 attacks.

Using the AUMF to justify war with ISIS has always stretched the bounds of credulity, as Ackerman noted, describing how, “As the path of least political resistance, Barack Obama based the war against ISIS on the AUMF, despite ISIS not having existed on 9/11,” and also “treated ISIS’ high-profile split from al Qaeda in 2014 as a legally insignificant fact.”

Repeated efforts at passing a new AUMF to cover the war with ISIS came to nothing under President Obama, and Donald Trump’s administration has already “ruled out seeking ‘additional authorizations’ to replace or update the AUMF,” according to a letter the State Department sent to Congress in August.

As a result, the unnamed US captive ought to be able to challenge the basis of his detention under habeas corpus, and, as attorneys told Ackerman, a US citizen can not only challenge the basis of their military detention in court, but doing so would “permit a judge to rule whether the AUMF applies to ISIS — and potentially invalidate it.”

On September 29, the ACLU sent a letter to Defense Secretary Jim Mattis and Attorney General Jeff Sessions “urging them to comply with the Constitution and ensure that the legal rights of the US citizen are respected,” but they received no reply, and so, on October 5, they filed a habeas corpus petition on his behalf in the US District Court for the District of Columbia, asking the court “to order the Pentagon to give the US citizen the opportunity to obtain legal assistance by putting him in secure contact with ACLU attorneys,” and also asking the court “to find that the military detention is unlawful and to rule that the only lawful basis to detain him is under properly filed federal criminal charges.”

As ACLU attorney Jonathan Hafetz explained, “Indefinite military detention without due process violates the most basic principles of our Constitution. The US government cannot imprison American citizens without charge or access to a judge. It also cannot keep secret the most basic facts about their detention, including who they are, where they are being held, and on what authority they are being detained. The Trump administration should not resurrect the failed and unlawful policy of ‘enemy combatant’ detentions.”

Following the submission of the habeas petition, the New York Times provided the most up-to-date information on the case. Eric Schmitt and Charlie Savage spoke to “an official familiar with internal deliberations” in the Trump administration, who “said the problem facing Pentagon and Justice Department officials is how to ensure that the man — who surrendered on Sept. 12 to a Syrian rebel militia, which turned him over to the American military — will stay imprisoned.”

The official — elsewhere described as a “senior administration official” — added that it “may not be possible to prosecute the man because most of the evidence against him is probably inadmissible,” but confirmed that “holding a citizen in long-term wartime detention as an enemy combatant — something the military has not done since the George W. Bush administration — would rekindle major legal problems left dormant since Mr. Bush left office and could put at risk the legal underpinnings for the fight against the Islamic State.”

The Times added that it was “unclear” whether the ACLU has standing to represent the prisoner without him “agreeing to let it represent him,” pointing out that, “Because Trump administration officials have refused to disclose his name, rights groups have been unable to track down any close relative to grant that assent on his behalf.”

The official who spoke to the Times provided some information about his background that was previously unknown, explaining that he “was born on American soil, making him a citizen, but his parents were visiting foreigners and he grew up in the Middle East,” and adding that the “near total lack of contact with the United States slowed efforts to verify his identity.”

Explaining the circumstances in which evidence was gathered against him, the official explained that he “was interrogated first for intelligence purposes — such as to determine whether he knew of any imminent terrorist attacks — without being read the Miranda warning that he had a right to remain silent and have a defense lawyer present.” The government “then started a new interrogation for law-enforcement purposes, but after the captive was warned of his Miranda rights, he refused to say any more and remains in military custody in Iraq.”

The source added that Investigators have identified a file “in a cache of seized Islamic State documents that appears to be about the captive,” but conceded that “prosecutors could have difficulty getting that record, which was gathered under battlefield conditions, admitted as evidence against him under more rigorous courtroom standards.”

As a result, the Times added, “while the Pentagon wants the Justice Department to take the prisoner off its hands, law enforcement officials have been reluctant to take custody of him unless and until more evidence is found to make it more likely that a prosecution would succeed.”

Steve Vladeck, a law professor at the University of Texas, who write about national security matter for the Just Security website, and recently wrote an article entitled, “The Increasingly Unsettling Indifference Toward the US Citizen ‘Enemy Combatant,’” told the Times that there was “a limit to how long the military can hold a citizen without at least letting him talk to lawyers.”

Vladeck said, “It would be one thing if this were a cooperating witness who was being kept in incommunicado detention to protect his safety and his intelligence value. But keeping someone in these circumstances simply because they don’t know what to do with him is not going to help them in court, if and when it gets there.”

In contrast, the Pentagon’s spokesman, Maj. Ben Sakrisson, claimed that “captured enemy fighters may be detained” as part of the armed conflict against the Islamic State, citing the 2004 Supreme Court ruling in Hamdi v. Rumsfeld, against Yasser Hamdi, a US citizen captured in Afghanistan in December 2001.

As the Times explained, however, “there are questions that were not answered by that 2004 ruling and would be raised again by trying to hold the new detainee indefinitely.”

The article continued:

Mr. Hamdi, like the new captive, was born in the United States but raised abroad — in his case, Saudi Arabia. After he was captured in Afghanistan, the Bush administration moved him, along with hundreds of other wartime detainees, to the prison at Guantánamo Bay, Cuba. Only there did officials discover his citizenship.

They transferred him to a brig in South Carolina and continued to hold him as an enemy combatant under the laws of war. In 2004, the Supreme Court ruled that his detention as a wartime prisoner was lawful — but also that he had a right to challenge the evidence that he was an enemy fighter in a hearing before a neutral decision maker.

Instead of granting him such a hearing, the Bush administration sent him to Saudi Arabia. The Supreme Court has never ruled on what kind of hearing — or how much or what type of evidence — is sufficient to hold an American in indefinite wartime detention. Attempting to hold the new detainee in that fashion would raise those questions anew.

The Trump administration would also face political risks in holding an American as a long-term enemy combatant. The Bush administration’s decision to detain Mr. Hamdi without trial, along with an American [Jose Padilla] and a Saudi on a student visa [Ali al-Marri] who were arrested in Illinois and transferred to military custody, was controversial across the ideological spectrum.

That is something of an understatement, as I made clear in numerous articles from 2007 to 2009, challenging the imprisonment of US citizens and legal residents as “enemy combatants’ on the US mainland — and decrying the torture to which they were subjected.

See, from 2007, Jose Padilla: More Sinned Against Than Sinning and The torture of Ali al-Marri, the last “enemy combatant” on the US mainland, from 2008, Why Jose Padilla’s 17-year prison sentence should shock and disgust all Americans, Court Confirms President’s Dictatorial Powers in Case of US “Enemy Combatant” Ali al-Marri and The Last US Enemy Combatant: The Shocking Story of Ali al-Marri, and, from 2009, Ending The Cruel Isolation Of Ali al-Marri, The Last US “Enemy Combatant”, Why The US Under Obama Is Still A Dictatorship and Dictatorial Powers Unchallenged As US “Enemy Combatant” Pleads Guilty. For updates on Jose Padilla from 2011 and 2014, see: It Could Be You: The Sad Story of Jose Padilla, Tortured and Denied Justice and Shameful: US Judge Increases Prison Sentence of Tortured US Enemy Combatant Jose Padilla.

Concluding their article, Eric Schmitt and Charlie Savage noted that it was not yet clear whether the Trump administration is “also weighing transferring the captive to Iraqi or Kurdish custody,” noting that the Obama administration “sent a previous high-profile Islamic State prisoner, Umm Sayyaf, to Iraq,” although, perhaps crucially, she was not American.

The Times also made a point of asking whether the existing use of the 2001 AUMF to justify war with the Islamic State can survive a new legal challenge, although it is less than a year since a judge dismissed a lawsuit submitted by Capt. Nathan Michael Smith, who stated that, “while he supported fighting the Islamic State as a matter of policy, he believed that the current effort violated the Constitution and the War Powers Resolution, which limits combat operations to 60 days if Congress has not authorized the deployment.” Last November, Judge Colleen Kollar-Kotelly ruled that Capt. Smith “lacked the standing to bring the case,” as the New York Times described it, adding that Judge Kollar-Kotelly also said that “whether the war had been properly authorized was a question for the two elected branches of government, not a court, to decide.”

In her opinion, she wrote, “This case raises questions that are committed to the political branches of government. The court is not well equipped to resolve these questions, and the political branches who are so equipped do not appear to be in dispute as to their answers.”

The Times also pointed out that “legal experts have warned the Trump administration not to bring Islamic State detainees to Guantánamo” to avoid testing the ability to detain prisoners under the AUMF. As Steve Vladeck described it, “They don’t want this habeas case. This is not the hill the government wants to fight the ISIS or the US citizen questions on.”

Andy Worthington is a freelance investigative journalist, activist, author, photographer, film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers, whose music is available via Bandcamp). He is the co-founder of the Close Guantánamo campaign (and the Countdown to Close Guantánamo initiative, launched in January 2016), the co-director of We Stand With Shaker, which called for the release from Guantánamo of Shaker Aamer, the last British resident in the prison (finally freed on October 30, 2015), and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by the University of Chicago Press in the US, and available from Amazon, including a Kindle edition — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US).

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