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Judge demands to know whether American detainee asked for lawyer

WASHINGTON >> Warning that the Trump administration seems to be claiming “unchecked power that is, quite frankly, frightening,” a judge ordered the government today to reveal whether a U.S. citizen held in military custody for 11 weeks has been warned of his Miranda rights and has sought access to a lawyer.

The order, by Judge Tanya S. Chutkan of the U.S. District Court of the District of Columbia, came midway through a contentious hearing in the highly unusual case. It centers on an American who was captured by a Syrian militia in mid-September, apparently fighting for the Islamic State, and turned over to U.S. military forces.

Although the International Committee for the Red Cross has visited the detainee twice, the government has kept secret even the most basic facts about him, such as his name. He was born in the United States to foreign parents and raised in an unidentified Middle Eastern country, a senior administration official has told The New York Times.

The man was eventually informed by interrogators of his Miranda rights to remain silent and have legal representation, and refused to talk to them. He specifically requested a lawyer, The Washington Post reported. But Chutkan said on Thursday she did not want to rely on media reports and wanted the government to disclose that information.

The detainee has raised a dilemma because national security officials believe the man was an Islamic State fighter and do not want to release him, but lack sufficient evidence to charge him with a terrorism-related crime, officials have said.

At the same time, keeping him in long-term wartime detention without trial as an enemy combatant is seen as unpalatable inside the government, in part because it would give a judge an opportunity to rule that the congressional authorization to fight al-Qaida does not extend to the Islamic State.

The hearing centered on a habeas corpus lawsuit filed by the American Civil Liberties Union on Oct. 5 on behalf of the man. The rights group is asking Chutkan to order the government to give its attorneys access to the detainee and, more broadly, to declare that his continued indefinite detention without charges is unlawful.

But the Justice Department has argued that the ACLU has no standing to bring the lawsuit because it has no relationship with him and has not even gained permission from his relatives to represent his interests in court. For that reason, it said, Chutkan lacks jurisdiction and must dismiss the case.

During the hearing, Chutkan, a 2014 appointee of former President Barack Obama, signaled discomfort with that position. She accused the Justice Department of employing “circular reasoning” since the government’s own actions have prevented him or his relatives from having contact with the attorneys.

The judge also expressed incredulity that the government, 2 1/2 months into the man’s detention, was still trying to decide what to do with him, asking whether there was any limit to how long officials could take.

“How long is this process going to take?” she asked.

“I don’t have an answer,” a Justice Department attorney, Kathryn Wyer, replied. She said the government was “diligently” working on the problem.

The judge also suggested the government was saying it could “snatch any U.S. citizen off the street and hold him as an enemy combatant in another country” indefinitely without letting him or her talk to a lawyer. She then made her comment about frighteningly unchecked power, and she also portrayed the government as essentially saying, “Just trust us; we know what we’re doing.”

Wyer pushed back, noting that the government “did not snatch this person up in Canada,” but rather took custody of him on a battlefield. Citing a 2008 case about Guantánamo detainees, she said the Supreme Court had said that the government has a right to take some time to decide what to do with prisoners captured in wartime before they may file habeas petitions.

Jonathan Hafetz, an ACLU attorney, stressed that the 2008 case involved noncitizens, and that they still eventually got hearings. He told the judge that the case was a “nightmare scenario” and urged her not to dismiss the case, saying that at a minimum she should ask the detainee whether he wanted to file a habeas corpus petition and, if so, wanted the ACLU to represent him.

But Wyer argued that Chutkan lacked authority to carry out even that kind of intervention if the ACLU had no standing to file the case in the first place. It would be “unprecedented” for the judge to rule that the civil-liberties group did have such standing despite being a “total stranger” to him, she added.

“Unless this petitioner has next-friend standing, this court does not have jurisdiction to do anything with regard to this detainee,” she said.

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