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.