WASHINGTON (CN) – Having triggered a federal judge’s fury earlier Thursday, prosecutors assured the court this evening that a U.S. citizen captured on the Islamic State battlefield has been informed of his right to an attorney.
U.S. District Judge Tanya Chutkan issued a 5 p.m. deadline from the bench this afternoon at a hearing over the status of an American whom the government has classified as an enemy combatant after capturing him allegedly fighting on behalf of the Islamic State group around Sept. 14.
Though the man’s name, age and precise location remain under wrap by the government, the American Civil Liberties Union Foundation filed a petition for habeas corpus on Oct. 5 as his next friend. The group wants the court to allow attorneys to meet with the American, advise him of his rights and provide him with legal representation if he wants it.
In a 3-page response to Judge Chutkan’s order, filed at 5 p.m. on the dot, Justice Department attorney Kathryh Wyer revealed that the accused combatant has asked for an attorney but also agreed to speak to FBI agents.
“The individual stated he understood his rights, and said he was willing to talk to the agents but also stated that since he was in a new phase, he felt he should have an attorney present,” the filing states.
At this morning’s hearing, ACLU attorney Jonathan Hafetz cited an Oct. 29 report by Washington Post, attributed to anonymous sources, that says the man was read his Miranda rights after refusing to speak to interrogators and has demanded an attorney.
Chutkan expressed concern at the hearing about the suspect’s access to counsel, but Wyer repeatedly refused at the hearing to give a direct answer on this point.
Insisting that the ACLU doesn’t have standing to bring the case, Wyer argued that the question of whether the American has been advised of his constitutional rights is irrelevant.
An impatient Chutkan asked Wyer several times to clarify this argument.
“That would be a very extraordinary position indeed,” Chutkan said.
Wyer said she would need to consult with the Department of Defense before saying whether the man was informed of his constitutional right to an attorney, and whether he had invoked that right.
Though the judge called herself an “avid reader” of the Post, she declined to speculate about the newspaper’s Oct. 29 article, saying that she wants to rely on statements from counsel instead.
ACLU attorney Jonathan Hafetz focused on Supreme Court precedent, saying it forbids the government from indefinitely detaining U.S. citizens as members of al-Qaida, or any other terror group, and depriving them of their right to counsel.
“This is the exceptional circumstance, this is the nightmare scenario,” Hafetz said in court.
Ruling for the government here “would undermine the protections of habeas corpus,” Hafetz said, adding that habeas means nothing without the right to counsel.
Chutkan echoed this concern, weighing a hypothetical future scenario where the government could snatch someone off the street and detain them abroad without granting them access to an attorney.
“That kind of unchecked power is, quite frankly, frightening,” Chutkan said.
For Wyer, the critical issue here is that the accused combatant wasn’t picked up off the street in Kansas – he was captured fighting on behalf of ISIS.
Chutkan clarified that she was not challenging his status as an enemy combatant, or the government’s right to detain him or not release his name, but rather was concerned about his lack of access to counsel.
Though attorney Wyer indicated that she would comply with the judge’s order, she made the court aware that the government’s objection rests on standing. The government argued in a Nov. 9 brief that the ACLU cannot purport to act as next friend to the detained American because such status has typically required a connection or some relation to the person.
“ACLUF cites no instance where a court has granted next friend standing to someone who did not even know the name of the real party in interest, and its fails to support the notion that habeas relief is so flexible that Article III requirements can be ignored,” the brief states, abbreviating the American Civil Liberties Union Foundation.
When Wyer raised the argument in court, Chutkan said the ACLU’s interest in the case is hardly random.
“This is what they do,” she said.
The government has not yet decided what action it will take with the accused combatant — whether it will prosecute him, transfer him to another country, release him or further detain him.
Chutkan failed to get an answer from Wyer about how long it would take the government to make this determination.
“I don’t have a prediction on that, your honor,” Wyer said, adding the question is one on which the United States is working diligently.
The International Committee of the Red Cross has visited the detained American twice since his capture. As per custom, however, it has refused to comment on his identity or his location. The government argued Thursday that if the detainee wanted an attorney, he could have asked the ICRC to deliver that message or contact a family member.
The Department of Defense reiterated that position Thursday afternoon.
“The ICRC has been notified of this detainee and has met with the individual,” DOD spokesman Maj. Ben Sakrisson said in an email. “The detained individual may ask the ICRC to notify their next-of-kin of the detainee’s status. Likewise, upon notification by the ICRC, the next-of-kin may decide whether to make public statements about their relative; DoD is not involved in these communications or decisions.”
Back in the courtroom, attorney Wyer argued that there is no indication that the American wants the ACLU to intervene on his behalf, or that he wants to file a habeas petition.
After the hearing, Hafetz told reporters that the entire purpose of habeas corpus “is to call the jailer to account.”
“The government was finally called to account after two-and-a-half months. They stonewalled on even the most basic questions about this citizen,” Hafetz said. “And that should send shivers through the spine of every American citizen about the awesome power the government is asking for here.”