There’s a guy. He’s an American citizen, but he’s held in Iraq. He’s alleged to be an “enemy combatant” fighting in Syria, but what evidence exists to support that claim is unknown. And he doesn’t have a lawyer, so the ACLU wants to step up.
For nearly two months, the U.S. military has been detaining an American citizen at a secret jail in Iraq, denying him access to a lawyer and even refusing to release his name. The Trump administration is calling the citizen an “enemy combatant,” claiming he was fighting for ISIS in Syria, but it has not presented any evidence to back up its allegations.
It’s entirely possible, if not likely, that the government’s claims are right, that this guy was fighting for Syria and, despite his citizenship, is an enemy combatant. But he’s still a United States citizen, which means he’s still entitled to his constitutional rights. I know, you don’t think he deserves them, but you don’t get a vote.
The Pentagon and Justice Department ignored our initial request for access to the U.S. citizen so we could advise him of his rights and offer him the opportunity of legal representation. We then filed a habeas corpus petition on the citizen’s behalf in federal court in Washington, demanding that the government justify its detention of the unnamed American. All U.S. citizens have the right to habeas corpus no matter where the government holds them or what it accuses them of. And, as we know from the government’s practices in places like Guantánamo, when it tries to undercut this right it opens the door to abuses, including the arbitrary detention of innocent people.
On the one hand, this United States citizen is being held in a secret Iraqi prison. On the other, the ACLU is denied access to the citizen to advise him of his rights and to offer their representation. So, the only option afforded by law is the Great Writ.
We also asked the court to order the government to connect the citizen with ACLU attorneys because he is facing grave threats to his liberty and possibly his life.
The government’s response is straight out of “Catch-22.” It is arguing that the ACLU cannot seek relief on the citizen’s behalf because we have never met him and don’t know his wishes. But that is a conundrum of the government’s own creation because it has provided no other way for this citizen to legally defend himself.
And a Catch-22 it is, as the government’s argument is entirely sensible under ordinary circumstances. Lawyers don’t pick their clients. Lawyers don’t get to walk into court, do the Pokemon thing, “I choose you.” We can’t speak for anyone who doesn’t give us the authority to speak for them, act for them, make decisions for them. We serve clients.
But when the client is held in a secret jail, denied access to counsel and counsel is denied access to the client, that’s not ordinary circumstances.
Instead, the government is piling one speculation on top of another. Maybe, the government suggests, the American could have conveyed his needs to the International Committee of the Red Cross (ICRC) when it visited him in custody, and maybe that organization could have contacted his family, and maybe his family could have found a lawyer to file a case on his behalf.
But that’s not what the ICRC does, and even so, the assumptions underlying the government’s speculation don’t necessarily hold up.
The citizen may not have family he can contact, or he might be afraid of contacting family for fear they will suffer retaliation. It is also possible the citizen’s family might not welcome contact from him, or, even if it did, the family may not know how to navigate the U.S. court system.
So the ACLU doesn’t know his name, doesn’t know his wishes, doesn’t have his approval of their representing him? Fair enough. The solution is to order the government to allow the ACLU, or even some random lawyer off the CJA panel who’s in the mood to spend some time at Club Fed Iraq, access to this United States citizen and ascertain his wishes. No matter what he’s done to deserve being treated as an “enemy combatant,” he’s still a citizen, and our Constitution still applies. That’s how we roll.
As for the ACLU, which has gotten itself into a huge steaming pile of controversy lately with its abandonment of the Constitution in favor of donations from the unduly passionate, this effort reflects the good it can, and should do, even if it aligns easily with some less savory social justice views.
The government also complains that allowing counsel to have access to the citizen wouldn’t be “easy.” But constitutional rights do not depend on the government’s convenience.
Like it or not, a United States citizen in the custody of the United States government is entitled to constitutional rights. That the government has created a conundrum to deprive a citizen of his rights, surrounded by an otherwise plausible argument that the party seeking a Writ of Habeas Corpus has no standing as it doesn’t represent the unknown and unnamed individual, gives rise to a situation for which there is no process in law to circumvent or overcome.
So when faced with extraordinary circumstances, the only option is extraordinary action, such as a blind Writ for an unknown individual.
Now, we’re fighting to stop the government’s unconstitutional attempt to create a new rights-free zone.
This is the alternative to the Catch-22 created by the government. Either the ACLU (or another lawyer), despite not being authorized to represent this person, is given access to him or the government has gotten away with the creation of a “rights-free zone.” That can’t happen.