- The Washington Times - Monday, December 11, 2017

A federal judge Monday accused the Trump administration of attempting “an end-run” around the Constitution by detaining a U.S. citizen indefinitely as an enemy combatant while also refusing to give him access to a lawyer to challenge his detention.

The American Civil Liberties Union has asked to represent the man and U.S. District Judge Tanya Chutkan seemed inclined to grant the request over the objections of the Justice Department.

“He wants counsel, which is an assertion and a request that I don’t think I can ignore,” Judge Chutkan said Monday, adding that she plans to rule quickly on the matter.

The man has been held in U.S. military custody since he was captured in Syria in September after allegedly fighting on behalf of the Islamic State.

The case has raised questions about the constitutional rights of detainees not dealt with since the courts grappled with how to handle enemy combatants captured in the war on terrorism under President George W. Bush.

The Supreme Court ruled in 2004 that while the government has the authority to detain U.S. citizens as enemy combatants, they must be given the chance to challenge their detention. But the court didn’t rule on how long a person can be held without getting a chance to challenge the detention.

In this latest case the Justice Department says the ACLU can’t step in because it doesn’t have an established relationship with the man. The government also says it has authority to temporarily detain him without court intervention while authorities determine whether the man will be criminally charged.

During the three months the man has been held in U.S. military custody, his identity has been kept a secret and little is known about him.

Under orders by Judge Chutkan, the government last month disclosed that the man has been advised of his right to legal counsel and told authorities he did not want to be questioned by FBI agents without a lawyer present.

A senior administration official with knowledge of the case told The Washington Times the government is still trying to determine what to do with the man.

“We don’t want to release someone who is a terrorist. We don’t want to hold someone who can’t be held,” the official said. “We are trying to see if we have all the evidence collected yet.”

Appearing in Judge Chutkan’s Washington courtroom Monday, Justice Department attorney Kathryn Wyer called the matter a “temporary situation” while officials weigh their next steps.

She said Americans in previous cases were held just as long without access to a lawyer.

What distinguishes this case is the fact the ACLU, which has had no prior contact or relationship with the man, is attempting to file legal briefs on his behalf seeking to challenge his detention.

The government argues the ACLU lacks standing to file on behalf of the man, and says the court has no authority to engage in discovery to learn more about the man in order to make determinations in the case.

Ms. Wyer said the government is “trying to resolve this matter expeditiously” but said there was no evidence in the record that the detainee wants to challenge his detention.

Judge Chutkan was deeply skeptical.

“He understands enough to say ‘I want a lawyer, I’m not going to say anything until I get a lawyer, and I’m willing to wait until I get a lawyer,’” she said.

Ms. Wyer said that the detainee’s response that he does not want to answer questions from FBI agents without a lawyer present is not the same as actually requesting a lawyer or requesting a court hearing.

ACLU attorney Jonathan Hafetz said he was “flabbergasted” by the government’s arguments, which he said disregarded prior court rulings on the issue.

In prior cases, he said the government had alleged that allowing an enemy combatant access to a lawyer could endanger Americans and harm national security, but that this time around the government hasn’t even made those assertions.

“They offer nothing other than convenience for why access shouldn’t happen now,” he said.

• Andrea Noble can be reached at anoble@washingtontimes.com.

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