01/23/2018 22:18 EST

Trump Administration Must Warn ACLU Before Sending American ISIS Suspect To Another Country, Judge Says

Judge Tanya S. Chutkan ordered the U.S. government to provide 72 hours of notice before transferring the detainee, who is being detained in Iraq.

Stringer . / Reuters

WASHINGTON — For months, the Trump administration has imprisoned an American citizen without charging him with a crime. The government says the man, whose name has not been released, fought with ISIS in Syria — but officials appear to lack the evidence to bring charges against him in court.

In October, the American Civil Liberties Union filed a petition for a writ of habeas corpus on behalf of the detainee, arguing that his imprisonment is unlawful. Since then, government officials have floated a clever way to potentially avoid a protracted fight over the legality of the prisoner’s detention: Instead of continuing to imprison the man themselves, they could simply transfer him into the custody of another country, where he could be detained and interrogated out of the reach of American law. 

Judge Tanya S. Chutkan of the Federal District Court of the District of Columbia complicated that plan on Tuesday, ordering the government to provide the court with 72-hour notice before transferring the detainee — creating a scenario in which the ACLU could stall the transfer by challenging its legality in court.

Jonathan Hafetz, the ACLU lawyer representing the detainee, cheered the ruling as a measure that “helps to ensure that this citizen’s rights are respected and that he will receive due process in an American court.”

Chutkan’s order came in response to an ACLU request for her to prohibit the government from transferring the detainee for the duration of his habeas challenge. The judge appeared sympathetic to the ACLU’s concerns during a court hearing on Thursday. The U.S. government transferring the prisoner to another country while being sued for unlawfully detaining him would allow the administration to do an “end run” around habeas litigation, the judge suggested.

Hafetz, said on Monday that his team would be satisfied with receiving 72-hour notice and the chance to challenge any transfer. The government opposed the requirement to give notice, arguing that it would complicate sensitive diplomatic negotiations between the U.S. and the country that would receive the detainee.

U.S. officials first detained the American citizen in mid-September after he surrendered to a Syrian rebel group, which turned him over to the Americans. He was held at an undisclosed location in Iraq for months without access to a lawyer.

Two months after the ACLU filed the habeas petition, Chutkan ordered the Pentagon to allow ACLU lawyers to speak with the detainee. The ACLU announced earlier this month that the detainee asked the group to represent him in challenging the legality of his imprisonment. ACLU lawyers have spoken with their client three times at the Pentagon through a video-conferencing system, Hafetz told reporters on Monday. The ACLU is working to arrange an in-person meeting.

The government has withheld the prisoner’s name and the man has also requested to remain anonymous, according to Hafetz.

So far, the court proceedings in the habeas case have focused more on the issue of the detainee’s potential transfer rather than the core issue of whether the government has a legal basis for detaining the anonymous American citizen. 

In December, The New York Times reported that Trump administration officials had coalesced around the idea of sending the detainee to Saudi Arabia, a U.S. ally in the war against ISIS, and a country with virtually no due process protections. The ACLU quickly moved to block the government from transferring its client out of U.S. custody. Chutkan put a temporary transfer ban in place that expired on Tuesday.

Department of Justice lawyer James Burnham argued in court on Thursday that sending the detainee to another country with a “significant interest” in him would effectively grant him the relief he is seeking through habeas litigation — release from U.S. custody. The government has not officially decided to send the detainee to another country, but views a transfer as one of several available options, Burnham said.

“Forcible transfer is not release,” countered Hafetz, who argued that the government has no legal basis for transferring the prisoner into another country’s custody. 

Burnham declined to disclose where the government is planning to send the detainee, but acknowledged that the individual is a dual citizen of the U.S. and Saudi Arabia.

If the detainee were to be sent into Saudi custody, he could be imprisoned there under a counterterrorism law that has been used by Saudi officials to arrest and detain citizens accused of posing a security threat, but which human rights groups have also criticized for being overly broad and tool for imprisoning government critics. 

The Trump administration has filed several documents under seal, detailing its transfer plans for the detainee and the basis for his imprisonment. The ACLU has seen redacted versions of some of those filings, but has not been told where the government is considering transferring the detainee, Hafetz told reporters Monday.