WASHINGTON (CN) – The American Civil Liberties Union filed a federal petition Thursday challenging the detention of a U.S. citizen who allegedly fought with the Islamic State and was captured on the battlefield in Syria last month.
The Department of Defense has not yet charged the American it has labeled an enemy combatant, and has not disclosed his identity or the location of his detention in Iraq.
The ACLU said in its October 5 petition for habeas corpus, which is used to challenge the basis of someone’s detention, that the man is being held unlawfully.
“Indefinite military detention without due process violates the most basic principles of our Constitution,” ACLU attorney Jonathan Hafetz said in a statement.
“The U.S. 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,” Hafetz continued. “The Trump administration should not resurrect the failed and unlawful policy of ‘enemy combatant’ detentions.”
Courthouse News has reached out to the DOD for comment.
According to the ACLU’s petition, the DOD has not notified the man’s family of his detention, or allowed any family member, organization or individual capable of providing legal advice to access him.
The ACLU argues that the U.S. military lacks the legal authority under the 2001 or 2002 Authorizations for the Use of Military Force to hold ISIS fighters in military detention.
The former only applies to individuals who took part in the 9/11 attacks, or who gave substantial support to the Taliban, al-Qaida or affiliated forces engaged in conflict with the U.S.-led coalition. The latter only authorizes the U.S. to defend national security against threats posed by Iraq’s government.
Nor does the 2012 National Defense Authorization Act authorize additional detention authority beyond those covered by the 2001 AUMF, the 14-page petition argues.
According to media reports, the man surrendered on September 12 to a U.S.-backed Syrian militant group, which transferred him to U.S. custody about two days later. The International Committee of the Red Cross confirmed on Monday that it had met with him, but as per custom, declined to comment on his location.
The ACLU filed the petition against defense secretary James Mattis about six days after the organization sent a letter to Mattis and Attorney General Jeff Sessions on September 29 “expressing deep concern” over the man’s detention.
Neither has responded to the letter, the petition said.
The ACLU is asking the court for a writ of habeas corpus to declare the American’s detention unlawful, to halt any interrogations of the man while the litigation is pending, and to allow attorneys to meet with him to advise him of his legal rights.
The ACLU is also seeking court orders requiring the military to transfer him to civilian law-enforcement custody and charge him in an Article II court, or release him.
A spokesman for the Department of Defense said as a matter of policy the agency does not comment on pending litigation.
However Pentagon spokesman Maj. Benjamin Sakrisson said in an email that the U.S. can detain captured enemy fighters – including American citizens – in the ongoing conflict with ISIS.
“Supreme Court precedents, in particular a 2004 Supreme Court decision regarding a Taliban fighter captured in Afghanistan, confirm that a U.S. citizen may lawfully be subject to military detention in armed conflict under appropriate circumstances,” Sakrisson said.
“The disposition of the detained unlawful enemy combatant will be deliberated with the appropriate agencies, in the interim, the individual remains in DoD custody,” he added.