Lawyers for the Justice Department revealed for the first time in a court filing Thursday that an unnamed US citizen, who has been detained as an “enemy combatant” in Iraq for over two months, asked his interrogators for an attorney and was told it is “unknown” when he would receive one.
The individual, whose identity and precise location have not been released, was turned over to US forces in mid-September and is accused of fighting for ISIS in Syria, according to court documents. He’s met with the Red Cross twice, but has otherwise been held incommunicado with the outside world.
The Justice Department said the man had been advised of his rights to remain silent and consult with an attorney, and the man indicated he wanted one.
“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,” DOJ attorney Kathryn Wyer wrote in Thursday’s court filing. “The agents explained that due to his current situation, it was unknown when he would be able to have an attorney, and the individual stated that it was OK and that he is a patient man.”
“No further questioning of the individual for law enforcement purposes has taken place,” Wyer added.
The filing came in response to pointed questions earlier Thursday from the federal judge in Washington overseeing the case, who ordered the Justice Department to answer specifically whether the man has been advised of his right to counsel and if he’s asserted that right.
Wyer demurred repeatedly when asked to provide basic answers about the circumstances surrounding the man’s detention, leading to a series of fiery responses from Judge Tanya Chutkan, who recognized that the case is unusual but suggested the government’s response has been “extraordinary.”
“It’s been two and a half months! I’d like to know how long you think you get to do this to a US citizen,” Chutkan said. “Basically, it’s just, ‘Trust us, we know what we’re doing.’ “
Last month, the American Civil Liberties Union filed a lawsuit requesting that the man be given access to counsel and demanding that the Trump administration justify his continued detention without charges. The Justice Department says the ACLU has no standing to sue because the group has not proved that the individual wants it to sue on his behalf.
“This admission by the government reinforces our demand that the citizen be given access to a lawyer, which is his fundamental right under the Constitution,” said Jonathan Hafetz, who argued the case on behalf of the ACLU Thursday. “The Trump administration’s position that it can lock up an American in secret without charges or the ability to challenge the detention in court is not how our legal system works.”
The Defense Department said in a statement Thursday that it’s “exercising the utmost care and consideration in this situation and will make a decision on the disposition of this detainee’s custody in the near future, consistent with US and international law.”
But Chutkan suggested that the logical conclusion of the Trump administration’s arguments in this case would be “the government could snatch a US citizen off the street … for as long as it took to come to some ‘final disposition.’ “
“That kind of unchecked power is frankly frightening,” she added.
CORRECTION: An earlier version of this article misspelled the first name of Judge Tanya Chutkan.