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A U.S. Citizen Suspected of Joining ISIS Has Been Held for Months Without Charges or a Lawyer

The Supreme Court ruled in 2004 that Americans get due process when accused of terrorism, and yet...

ISIS flagAsmaa Waguih/Polaris/NewscomAn American citizen has been held in Iraq as an enemy combatant for several months, and the federal government has refused to reveal his name or to give him access to a lawyer.

According to the government, the man in question is a United States citizen who went to Syria and joined the Islamic State. Kurdish forces captured him in September, and he was handed over to the U.S. military on September 14. The authorities refuse to identify the man, and he has not been before a judge or in a courtroom since his detention.

The American Civil Liberties Union (ACLU) is attempting to intervene on the man's behalf. Yesterday U.S. District Judge Tanya Chutkan took a dim view of the Department of Justice's excuses for keeping the man hidden at a secret prison in Iraq.

The government is being secretive about the man's identity for a reason: The Justice Department is trying to push away legal challenges to his detention by claiming that nobody has legal standing to represent him. Nobody outside the feds knows who he is, therefore nobody could claim to represent him in court. That the government itself is the reason why we don't know his identity is just the icing on the cake.

The Washington Post describes Chutkan's reaction to the Justice Department's arguments:

"How on earth is the man to exercise his habeas rights," and contest being held, Chutkan at one point asked attorneys for the government at an hour-long hearing. The judge said their position suggested "an end-run" around the Constitution by saying in effect "You don't get to exercise your habeas rights until we decide what to do with you."

ACLU attorney Jonathan Hafetz called the government's position "Kafkaesque" and "a direct assault" on the authority established by the U.S. Supreme Court during George W. Bush's presidency for U.S. citizens suspected of belonging to al-Qaeda and other terrorist groups after the Sept. 11, 2001, attacks to challenge detentions after being captured on the battlefield.

The Supreme Court ruled in 2004 in Hamdi v. Rumsefeld that U.S. citizens being held as enemy combatants still retain the right to due process and to challenge their classifications as combatants. The Pentagon has disclosed (after being ordered by this judge to do so) that the man has requested a lawyer. That attorney has not yet been provided.

The behavior here by the Pentagon and Department of Justice is pretty repulsive, but the fact that the case involves a U.S. citizen who has apparently joined ISIS means it's not likely to inspire much public outrage. Nevertheless, the purpose of due process is to guarantee the rights of those accused of even the most egregious of crimes. This guy has a right to a lawyer and a court hearing.

Read more about the case from the ACLU here.

Photo Credit: Asmaa Waguih/Polaris/Newscom

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  • Half-Virtue, Half-Vice||

    Why can't traitors just be executed anymore? How about we muster up some mercy for the thousands of black folk in prison for victim-less crimes before we weep for terrorists.

  • Hugh Akston||

    Maybe because we're slowly realizing that treason is a bullshit charge invented by cowards to punish people who are insufficiently submissive to the Crown?

  • BYODB||

    I instantly recall Wen Ho Lee and his sharing of nuclear secrets with China. Traitor, or patriot?

  • Hugh Akston||

    Well, considering the federal government was unable to convict him of jack shit, I would say "that might not be the best example to make your point".

  • BYODB||

    So it's patriotic to mishandle nuclear secrets, or is your point that he was a traitor for mishandling nuclear secrets?

    Oh, nevermind, you're saying he was neither a traitor or a patriot for mishandling nuclear secrets. He was just misunderstood.

  • Hugh Akston||

    I'm saying the government was unable to make a convincing case that he had done anything illegal. If you want to test whether treason is a meaningfully wrong thing, try using a case of someone who was convicted of, for example, treason.

  • Crusty Juggler||

    Richard Jewell.

    Boom.

  • Hugh Akston||

    /\ This guy gets it.

  • Curt||

    Yeah!!!! Why should we have to prove someone is traitor before we execute them for being a traitor?!?! This due process crap is stupid. We should just trust the infinite wisdom of our superiors.

  • Cynical Asshole||

    No shit! All suspects are guilty, period! Otherwise, they wouldn't be suspects!

  • Zeb||

    Why can't traitors just be executed anymore?

    Seems like you are skipping some steps. And trusting too much in the word of the government and military. Do you think they would never make shit up to make an inconvenient person disappear? What's the danger in doing what the ACLU is asking here? I think that's really the question. Why not give him some measure of due process? At least habeas corpus.

    How about we muster up some mercy for the thousands of black folk in prison for victim-less crimes before we weep for terrorists.

    I care a lot more about those people's plight than this asshole. But my having an opinion on this doesn't detract from that at all.

  • Cynical Asshole||

    US citizens are supposed to habeus rights, regardless of whether they're accused of petty drug offenses or treason.

  • loveconstitution1789||

    ISIS does not recognize Geneva treatment of our troops, so neither should we.

    Decide right now about this unnamed American if he's a criminal or mercenary. If he's a criminal, bring him back to the USA and give him a trial. If he's a mercenary, summarily execute him after a court martial.

  • Kivlor||

    ^^This

  • Hugh Akston||

    So what other standards set by ISIS should the US follow? Public beheadings? Serial rapes of prisoners? Wanton destruction of historical sites?

    I mean, if ISIS does it, America certainly can't be held to a higher standard.

  • Kivlor||

    Such agreements should always be gentleman's agreements. We agree to not use X tactics if you agree not to as well. We agree to not target specific types of targets if you agree not to. Unilateral disarmament is retarded.

    Nothing should be forbidden in war, if it is a useful tactic, and if your enemy wouldn't agree to bar it as well.

  • Hugh Akston||

    So that's a yes to raping civilian prisoners then?

  • Cynical Asshole||

    *unzips pants* Where do I sign up? /sarc

  • ace_m82||

    Nothing should be forbidden in war

    So, purposely killing millions of civilians is totally fine because "the other guys are REALLY bad"?

    This sounds like the origin story for a super-villain...

  • Kivlor||

    If it furthers the war effort, and our enemy won't agree to ban it, then yes.

    Following your logic we should just agree to never use nukes no matter what. I wouldn't. And I take that decision to its logical conclusion. If attacking a civilian populace is the most effective way to victory, then we should do that--if the other side wouldn't agree to forbid such behavior. If they won't agree to such terms, and it's not helpful to the war effort, we shouldn't do it. If they agree no one should behave like this, then we treat them accordingly.

  • ace_m82||

    So, I'm taking that as a "yes" to the super-villain question...

  • Kivlor||

    If Truman was a supervillain. Or Churchill.

  • Jickerson||

    And they were.

  • Zeb||

    How does keeping this guy secret and not allowing him to have a lawyer or any kind of hearing further the war effort? I agree that if you are figting an all-out war and there is something you can do that will help you win, you should almost certainly do it, even if it's nasty. But I don't see how this fits in. Giving this guy representation and some due process doesn't mean he's going to be set free to fight with ISIS some more. If he really was fighting with ISIS, even if he's tried in a civilian court, he's going away for life (if not death). This is not some emergency situation where drastic measures are called for. Treating this guy like a US citizen isn't going to hurt the war effort.

  • Jickerson||

    I agree that if you are figting an all-out war and there is something you can do that will help you win, you should almost certainly do it, even if it's nasty.

    We should never violate people's fundamental liberties under any circumstances. Using violence in response to a direct imminent threat is just self-defense, but you seem to be speaking more generally, which I can't agree with. I would rather lose than violate our basic principles.

  • Kivlor||

    Zeb, I'm not applying that to this guy being held indefinitely. He's a US citizen, or so they claim, so he MUST be charged and brought before a court-martial, or he must be released.

    The argument that LC made, and I agreed with was: Determine if he's going to be charged as an enemy combatant immediately, and if so, charge him and try him in the military.

    I also agreed with the sentiment RE: Laws of War which apparently caused some weird issue because some people here (not you obviously) live in a dream world where should an enemy nuke us it would be unthinkable that we'd nuke them; or should they attack civilian centers, that we wouldn't do it back; because "we're above that".

  • Zeb||

    We probably don't disagree too much, then. Things do work differently in a war. I'm not saying he should be brought to the US and have a regular criminal trial. What I object to is not allowing anyone from outside the military/government to make sure everything is above board. If it looks like the charges are legitimate, give him a military trial and get what he has coming. I don't think that hurts anything.

  • BYODB||

    America is already doing 2 out of the 3 things you list.

  • Kivlor||

    In Hugh's addled brain we only wage wars where the bad-guys get killed and there is zero collateral damage.

  • Jickerson||

    Collateral damage is one thing, but it's something else to intentionally kill innocents. A staggeringly high percentage of our drone strikes do not hit the right targets. Furthermore, not a single one of the wars we're currently engaged in are justifiable in the least, so we should simply pull out of all of them.

  • Adam330||

    You seem to be making the rather important assumption that this guy actually joined ISIS. The US got him from the Kurds. It's not as if foreign forces have never turned over prisoners to the US with bad information.

  • Brandybuck||

    ""ISIS does not recognize Geneva treatment of our troops, so neither should we.""

    Except that we are a signatory to the Geneva Convention. It's not binding, but that's no excuse to discard it just because it's inconvenient to the Orange One.

  • Agammamon||

    Or the Blue-Haired One.

  • Hugh Akston||

    Milhouse?

  • Curt||

    Cookie Monster?

  • loveconstitution1789||

    The only reason to treat enemy soldiers certain ways is because that is who we are as Americans and because we want other armies to treat our soldiers similarly.

    I am against torture because that is not who we are as Americans but the death penalty via court martial is perfectly in keeping with American tradition for high offenses.

    If you go and fight for a foreign army, you are no longer just a criminal committing criminal acts but a mercenary waging war against America in another army. Criminals deserve due Process. So do mercenary waging war against the USA, but the trier of fact is via court martial and punishment can be swift.

  • Jickerson||

    So do mercenary waging war against the USA, but the trier of fact is via court martial and punishment can be swift.

    It sounds like the burden of proof is much lower, even for cases where the punishment is the death penalty. That should not be allowed. Many of our traditions are unethical.

  • Bacon-Magic glib reasonoid||

    If you go to a known hot spot for anti-western civilization and join the enemy...you are an enemy and any rights as a citizen should be suspended. That said if he's an American citizen he deserves a court hearing first. If he doesn't get that this I agree with Scott that this is heinous.

  • Bacon-Magic glib reasonoid||

    *then

  • Azathoth!!||

    The man was captured by the Kurdish forces.

    Captured doing what?

    Trying to kill our allies.

    Ah.

    No need for a 'trail'. This isn't some murder that requires due process. This is a jihadi, captured by a foreign power who happens to be an American. He is not a cause celebre--he is an embarrassment and a disgrace.

    We should have standing orders that Americans caught while fighting for the enemy should be summarily executed.

  • Kivlor||

    Here's a thought: If Reason and their left-wing allies get their way, and we have to give such people a trial in criminal court to prove they are enemy combatants, and then give them their court martial, and then punish them, would it not stand to reason that the military will just remove the headache by telling our allies: "He's your prisoner" or even just giving the order to not take such people prisoner?

  • ace_m82||

    First they came for the Socialists, and I did not speak out—
    Because I was not a Socialist.

    Then they came for the Trade Unionists, and I did not speak out—
    Because I was not a Trade Unionist.

    Then they came for the Jews, and I did not speak out—
    Because I was not a Jew.

    Then they came for me—and there was no one left to speak for me.

  • Azathoth!!||

    At what point in this litany did they come for the people shooting at them?

    Because I think that throws a monkey wrench into the works.

    You can't leave that out. It's not a knock on the door in the middle of the night--it's a guy with a gun, who's trying to kill you in the name of Allah--YOU weren't coming for HIM at all.

  • ace_m82||

    That's what the government says. And they never lie, right? Why bother having any trials at all? If you're accused of X by the almighty government, then you're obviously guilty, right?

  • loveconstitution1789||

    You might have a point except this guy actively waged war against the USA.

    Even the Founding Fathers knew and accepted that if the Revolution failed and they were caught by the British, they would be hanged as traitors to the crown that they didn't want to be subjects of.

  • markm23||

    _Allegedly_ actively waged war against the USA. Accusation does not equal proof - except for Stalinists and their co-travelers.

  • Bubba Jones||

    The point of the hearing is to prove that he was captured while fighting for ISIS.

    All we have at this time is the word of one bureaucrat who wasn't there.

  • Azathoth!!||

    Ummm....no, we don't.

    He was taken captive while he was fighting for ISIS against Kurdish forces. He was remanded to American custody. This isn't about the word of a bureaucrat.

  • Zeb||

    OK, it's about the word of Kurdish forces then. I don't think that's any better than the word of a bureaucrat.

  • Kivlor||

    This is why he should a military court. The military is in the best position to call on and interview the Kurdish soldiers that would stand as accusers. The military is the proper channel for justice in this particular situation--an American captured on foreign soil and standing accused of taking up arms with enemies of the United States.

  • Get To Da Chippah||

    Great, that means I can summarily execute you and claim it was because I saw you fighting for the enemy. Since there's no need for a trial in such cases, there's no need for me to provide evidence to back up my assertion.

  • Azathoth!!||

    As long as I'm coming at you with a gun, absolutely.

    As long as I've been captured while in the process of trying to kill you, absolutely.

    No 'claims'.

    No wasted time. Right there, on the battlefield.

  • Agammamon||

    So, then no?

    Because this guy wasn't captured doing any of that.

  • Zeb||

    Then the Kurds should have executed him. But if he's an American in American custody, the rules are different.

  • Azathoth!!||

    Yes, that's what I'm saying.

    We need to have standing orders--maybe procedures or ROE is a better way of saying it--something that lets our allies know that Americans, captured while fighting for the enemy, can be summarily executed.

  • Agammamon||

    So, why the special treatment for Americans?

    Because no one else, once captured, can be summarily executed.

  • OpenBordersLiberal-tarian||

    Good for the ACLU. I'd like to see them handle more cases like this, and fewer cases defending the "free speech rights" of white nationalists.

  • Kivlor||

    You're getting better.

  • Bacon-Magic glib reasonoid||

    C+

  • Kivlor||

    The Supreme Court ruled in 2004 in Hamdi v. Rumsefeld that U.S. citizens being held as enemy combatants still retain the right to due process and to challenge their classifications as combatants. The Pentagon has disclosed (after being ordered by this judge to do so) that the man has requested a lawyer. That attorney has not yet been provided.

    Can anyone imagine any of our Founders arguing this? That an American who went to a foreign nation, and took up arms with the enemies of the US, was captured, and handed over the the US military, should not be tried in a military proceeding? That the military should hand him over the the criminal courts and try a case to prove that they should have the right to try him?

    Or do you think they'd have just had him tried in a court martial, and been done with it?

  • ace_m82||

    Non Sequitur. They aren't trying him at all. You get a lawyer at a court martial.

  • Bubba Jones||

    Exactly. Ship him to Gitmo and try him there.

  • Kivlor||

    Yeah, and if you had read my statement fully rather than just assuming it was a complete defense of the current situation, you might realize that I have a problem with the military just holding the guy indefinitely and not charging him with a crime.

    He should be brought before a court martial post haste--with counsel as UCMJ calls for. They can determine if he is an enemy combatant or not. If he's not, he must immediately be sent home and released. If he is, the court martial can determine his fate.

  • Adam330||

    Why is everyone assuming that this guy actually joined ISIS? DoD has been known to be wrong about the people it captures, either because of simple mistakes or ill intent. Not to mention that the info on this guy apparently came from the Kurds. There are a number of well-documented cases where people got sent to Gitmo based on false claims from foreign forces that turned them over to the US.

  • Hugh Akston||

    It'll be easier to determine his guilt if they execute him first.

  • Diane Reynolds (Paul.)||

    If he drowns, it means he was innocent.

  • Agammamon||

    Dude, he's not even getting a court-martial. He's not getting a trial at all. He's not even gotten access to a lawyer - which he would have if he were getting a court-martial.

    He's being held incommunicado for an indefinite period because someone *claimed* that he's an enemy combatant.

  • Kivlor||

    And it's wrong that he's not getting a court martial. But sending him off to the courts in the states is retarded. He needs to be brought before a military court, and tried. If he is found to be an enemy combatant, he should be executed and given a shallow grave. If not, he should be sent to the US and released immediately.

  • Agammamon||

    If he's to be court-martialed he's going to be sent off to a court in the states anyway.

    He'll be back in the states, held in prison there, assigned a lawyer, and the case will grind out in the military court system for a couple years like all the other serious ones do.

    And if you think that he's *more* likely to get a 'guilty, hang him' sentence in a military court, you don't know military courts. Its not an abbreviated procedure, its not one with fewer protections for the accused.

    It is, however, one where the people involved take their duties *extremely* seriously and so will dot every i and cross every t and will have no problem whatsoever - none at all - of declaring this guy not guilty if the 'beyond a reasonable doubt' burden is not met by the state.

    I would far rather go through the military courts for any serious transgression than the civilian ones.

  • Kivlor||

    This is way late, but if you come back to see this Ag, I want you to know that I don't support the court martial because I think it's more likely to get a guilty verdict. I support it because I think it is the appropriate jurisdiction for a person caught abroad by allied forces, accused of fighting for the enemy, and surrendered by said allied forces to the US military. I think that because all of this happened on foreign soil, and involves military action by the accused and on our own side, the military is obviously the proper authority to oversee the case.

    I assume that the trial won't be extremely swift, because he should be afforded counsel as per UCMJ and if that counsel does their job they'll slow things down to try to come up with an effective defense. That said, I want the trial process to begin swiftly, even if the trial itself is not over swiftly.

  • Zeb||

    I can't imagine any of our founders getting involved in a war on the other side of the world, let alone staying there for 15 years.

  • Calidissident||

    We did get involved in the Barbary Wars under Jefferson and Madison. But those were in reaction to attacks by the Barbary states and their proxies, authorized by Congress, and limited in scope.

  • Zeb||

    Yes, I should have considered that. What I should have said was "sent a large army to the other side of the world for 15 years".

  • Unicorn Abattoir||

    -1 Barbary Wars

  • Kivlor||

    I'm actually with you on that part Zeb, and I'm opposed to most of our involvement abroad.

  • Agammamon||

    Its almost funny how many of you here call yourself libertarians, hold the government in suspicion in every other aspect - except here.

    Someone *says* this dude is a traitor so . . . just kill him, right? I mean, how could there be a mistake? He's been arrested, right? They wouldn't have arrested him unless he was guilty, right? They must have some great evidence against him, right? Just like they've had against all the dudes that end up on Death Row, right?

  • Crusty Juggler||

    Real libertarians trust the government.

  • Kivlor||

    Or some of us don't call ourselves libertarians. That's probably part of it.

  • Stormy Dragon||

    I recall earlier this morning in a Moore thread, someone was saying something about how the left is contemptuous of the first 10 ammendments, unlike the right.

  • Hugh Akston||

    People on the right are the ones with the special decoder glasses that let them see the secret appendix that the Bill of Rights only applies to US citizens outside the theater of war.

  • Unlabelable MJGreen||

    I recall every Moore thread having a bunch of wailing about due process.

    This is fun.

  • BYODB||

    I bet you enjoyed reading Rules for Radicals, eh?

    But I do actually agree with you. Apparently some people can't be consistent 'because terrorism' which is about as expected.

  • Crusty Juggler||

    Terrorists gave up their rights when they became terrorists imo.

  • ace_m82||

    And you know they're terrorists ...how again?

    There's a procedure for determining this ...I'm just forgetting the term

  • Unicorn Abattoir||

    sorting by color?

  • Crusty Juggler||

    I am so much better at parody and/or trolling than that guy who puts in actual effort.

    lol

  • Kivlor||

    If this is aimed at me, I'm actually being quite consistent. I'm advocating for the man being given a trial under the proper jurisdiction, which would be a military court.

    And I'm completely opposed to just detaining him indefinitely without charge. They've had 3 months. Either issue charges and convene a military court or let him go.

  • BYODB||

    Obama already established that you can just drone strike these guys, man, so I'm not sure what's up now. Frankly this seems like a step up that they're just holding them forever without a trial. I mean, the alternative is a remote detonation right? Or did Obama change that on his way out the door too?


    /sarc

  • Number 2||

    Damn you, beat me my a lousy three minutes...

  • Fist of Etiquette||

    We're basically trusting the federal government that this person has done what is claimed. That claim must be able to hold up to challenge. It's not a good sign that the government won't allow the challenge.

  • loveconstitution1789||

    There is a burden to care about an unnamed person who might or might not be an American.

    Get his name first and whether he is an American, then I might care.

  • Number 2||

    Why are we wasting time detaining this guy? Let's just secretly declare him to be an Imminent Threat to America and blow him to pieces with a drone. A Nobel-Peace-Prize-Winning Constitutional Scholar assured us that this constitutes "due process" under the Fifth Amendment!

    /sarc

  • BYODB||

    Yeah, I'm not saying we shouldn't give a shit about the guy but lets face it they could have legally done a lot worse. That's a problem, for sure.

  • Diane Reynolds (Paul.)||

    If they'd have drone-struck him, no one would have even noticed.

    /no sarc.

  • John C. Randolph||

    The US constitution is the entirety of the legal basis for the existence of the federal government. It is binding upon all federal employees, at all times, in all places.

    -jcr

  • Citizen X - #6||

    Hilarious! Tell another one.

  • Crusty Juggler||

    John Kerry walked into a bar.

    The bartender said, "So why the long face?"

  • Curt||

    A bear walks into a bar and tells the bartender, "I'll have a.................................. beer."

    Bartender says, "Why the big pause?"

  • Unicorn Abattoir||

    A man walks into a rooftop bar and takes a seat next to another guy. "What are you drinking?" he asks the guy.

    "Magic beer," he says.

    "Oh, yeah? What's so magical about it?"

    Then he shows him: He swigs some beer, dives off the roof, flies around the building, then finally returns to his seat with a triumphant smile.

    "Amazing!" the man says. "Lemme try some of that!" The man grabs the beer. He downs it, leaps off the roof —and plummets 15 stories to the ground.

    The bartender shakes his head. "You know, you're a real jerk when you're drunk, Superman."

  • Diane Reynolds (Paul.)||

    That joke works better with Celine Dion.

  • Unicorn Abattoir||

    So what you're saying is strange women lying in ponds distributing swords IS a basis for a system of government?

  • perlchpr||

    Given what we've ended up with using the current system, maybe we should try it.

  • AD-RtR/OS!||

    He was captured by the Kurds?
    Give him back to them and let them deal with him.

  • prediksi hongkong||

    Kerusakan jaminan adalah satu hal, tetapi itu adalah sesuatu yang lain untuk secara sengaja membunuh orang yang tidak bersalah. Persentase yang sangat tinggi dari serangan drone kami tidak mencapai target yang tepat. Selain itu, tidak satu pun dari perang yang kita lakukan sekarang dapat dibenarkan, jadi kita harus menarik diri dari mereka semua.

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