Hide And Seek, The Government Loses

District of Columbia Judge Tanya Chutkan is to be doubly commended. First, for resolving the dilemma the government created when it played hide and seek with a United States citizen captured and held incognito overseas, then contending that the ACLU couldn’t represent its captive because he didn’t seek their representation.

And for doing so in twelve pages.

Somewhere in Iraq, a United States citizen has been in the custody of the U.S. armed forces for over three months. The detainee, who has been classified as an enemy combatant and whose name has not been released, was advised of his right to counsel and requested the assistance of counsel. To date, the detainee remains unnamed, uncharged, and, despite his request, without access to counsel. This court must now consider whether Petitioner shall be permitted to proceed in this matter as the detainee’s next friend.

As reflected in comments to the first post on this case, the fact that he’s classified as an enemy combatant does not mean he’s stripped of his constitutional rights as a United States citizen. No matter how passionately you believe he should be, he’s not. Tough nuggies.

The problem arises from the fact that the ACLU seeks access to this unnamed person to ascertain whether he desires it to represent him. The government told them to suck eggs, so the ACLU sought a court order to compel the government to give it access. For the moment, the government still seems to pay some attention to the judiciary, despite Larry Tribe’s efforts to end that.

The government’s response to the ACLU’s suit was to argue that they lack standing, since the putative client has never authorized the ACLU to act on his behalf. Cool trick, but not cool enough.

The Defense Department argues that next friend standing should be denied because the ACLUF has not conferred or met with the detainee, and therefore cannot prove that it is pursuing his best interests, and, most importantly, the ACLUF does not know if the detainee wants the ACLUF to pursue habeas relief on his behalf. The court finds the Defense Department’s position to be disingenuous at best, given that the Department is the sole impediment to the ACLUF’s ability to meet and confer with the detainee. Moreover, having informed the detainee of his right to counsel, and the detainee having asked for counsel, the Department’s position that his request should simply be ignored until it decides what to do with the detainee and when to allow him access to counsel is both remarkable and troubling.

The Whitmore test is whether the person for whom a “best friend” seeks to stand in is inaccessible, which wasn’t disputed in this case, and whether the putative “best friend” has the inaccessible person’s “best interests” at heart.

Second, the next friend must demonstrate that it is “truly dedicated to the best interests of the person on whose behalf [it] seeks to litigate.”

This second prong is trickier than it at first appears. How does one know the “best interests” of a person one doesn’t know? Consider the pregnant woman in a coma scenario, and the myriad “best friends” who want to obtain a court order as to what becomes of the baby and the woman.

But this scenario wouldn’t seem to be as difficult to resolve, despite the government’s arguments that maybe he wants to keep the ACLU out of his life. Since the initiation of suit, the government has conceded that the person wants counsel, which eliminated one ridiculous argument. But it doesn’t answer the question of whether he wants the ACLU to be his counsel.

This raises an additional concern, whether the putative “best friend” has a significant relationship to the person for whom they seek standing. As in the pregnant woman example, this could be the critical difference between whether a pro-abortion or anti-abortion, pro-death with dignity or anti-death group seized control. Here, the ACLU has no known connection to the individual for whom they seek standing.

Even where no relationship—significant or otherwise—exists, next friend standing may be warranted in extreme circumstances. See Coal. of Clergy, Lawyers, & Professors v. Bush, 310 F.3d 1153, 1167 (9th Cir. 2002) (Berzon, J., concurring) (“In the extreme case, where there is no next friend under traditional criteria, the showing required to meet Whitmore’s second prong should be relaxed, to the degree that no relationship should be required if none is practically possible.”). Specifically, under Judge Berzon’s interpretation of the doctrine, next friend standing may be established in the absence of a relationship if: (1) the petitioner makes “an affirmative and convincing demonstration” of its dedication to the detainee’s best interests, “including a showing that [it has] made a reasonable effort to establish a relationship if none exists;” and (2) the petitioner can also show “that the circumstances entirely preclude both the appearance as next friend of anyone with a relationship to the detainee[] as well as the practical representation of the detainee[]’s interests in court by others similarly situated.”

Judge Chutkan held the ACLU met these criteria, most notably because the defense department’s refusal to allow access would otherwise create the impossible and “disingenuous” situation that would deny the defendant any ability to challenge his detention.

Significantly, the order of the court was as benign as possible, that the ACLU be given “immediate and unmonitored access to the detainee for the sole purpose of determining whether the detainee wishes for the ACLUF to continue this action on his behalf.” That they had to go through this charade to achieve such a basic order is shocking, but despite the government creating what it considered an impossible dilemma for the ACLU, the court refused to allow the government to manipulate circumstances so as to deny a person his constitutional rights. Maybe the guy will tell the ACLU to go fly a kite, but at least he will get the opportunity to do so.



17 thoughts on “Hide And Seek, The Government Loses

  1. Richard Kopf


    For what it is worth, and recognizing that this is a knee-jerk reaction, I would have told the ACLU to suck eggs. On my own motion, I would then have appointed a Federal Public Defender to perform the same function as the judge outlined in the order. All the best.


    1. SHG Post author

      To its credit, the ACLU put its butt on the line. While a federal defender would accomplish the same goal of affording a citizen his constitutional rights, it’s hard to dismiss the fact that the ACLU, and no one else, saw fit to make the fight. You have to give them credit for that.

      1. Sgt. Schultz

        Who will be present to act as a true neutral, a real “best friend” if the ACLU tries to coerce the guy into allowing it to represent him when he would prefer a lawyer dedicated solely to him rather than whatever cause will get the ACLU the most donations?

        Judge Kopf has a point. While one can applaud the ACLU for acting, they are dedicated to their own causes, not to the best interests of the individual. I would go with federal defender.

    2. Jim Tyre

      Judge Kopf:

      I’ve never claimed to be a criminal lawyer, but I see a serious problem with what you propose. Which FPD? There is no FPD in Iraq, as far as I know. Can an FPD office afford that expense? From reading Scott’s blawg (and other things), I get the sense that not many FPD office are overflowing with extra resources.

      Take it a step further. If the detainee is ever brought to the US to face charges, where in the US? If, hypothetically, he’s brought to New York, would he be best served by an FPD from California?

      I don’t know the answers to these and other questions, I ask sincerely. In the meanwhile, I hope that you, Scott and every other regular here (well, ‘cept mebbe Barleycorn) have a Merry Christmas.

      1. Ahaz

        I will freely admit ignorance of the law, but I agree with you. I think rulings of the type that the Judge may have made merely gives the appearance of protecting the rights of the accused. The govt still holds all the cards, chooses the representation (if they even choose an advocate) and the level of effort to defend the accused. If one believes that the justice system works best when there is an adversarial relationship between the govt and the accused, I believe the judge made the right ruling.

          1. Patrick Maupin

            “The government” is a monolithic, evil entity encompassing all three branches (and most of the Fourth Estate). If you cannot see that, it may simply be that your tin-foil hat is not on tight enough, and some of the rays are getting through.

      2. SHG Post author

        These aren’t serious questions. The judge would order the FPD of his district, whichever one that would be (here, it was D.C.). FPDs aren’t in the same financial position as state public defenders (IIRC, their budget is overseen by the district judges, so they can authorize whatever expense is involved), and the purpose isn’t, at this stage, to decide who will rep him at trial, but to ascertain whether he wants representation at all under the circumstances.

        Regardless of the details, it can all be accommodated, so logistics aren’t a reason for making it the ACLU rather than an FPD. One step at a time.

        Merry Christmas, Jim.

  2. B. McLeod

    So now the military will “fix” this by throwing an ACLU attorney in the stockade with the prisoner. Presto, he’s “represented.”

  3. Pedantic Grammar Police

    SHG, may your Christmas be as merry as a grouchy old curmudgeon can do.
    Merry Christmas to the rest of the crew,
    And readers old and new.
    Billy Bob too!

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