- The Washington Times - Wednesday, November 29, 2017

A federal judge will consider Thursday whether a civil rights group can intercede to offer legal services to a U.S. citizen who hasn’t asked for its help but is being held in military custody as an enemy combatant since his capture in Syria in mid-September.

The American Civil Liberties Union says the Trump administration should not be able to hold the unidentified man in custody without filing charges against him. The group wants permission to inform him of his right to a lawyer and to represent him.

But government lawyers say authorities are still debating what to do with man, and said the ACLU can’t intervene on behalf of someone it has no relationship with.

The case could force the courts once again to grapple with the kinds of issues they faced in dealing with enemy combatants from the George W. Bush administration’s war on terror.

The Supreme Court 2004 ruling in the Yaser Hamdi case said 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.

“When they heard the idea that the executive could say a U.S. citizen could just disappear and they have no rights at all, judges across the spectrum were appalled by that,” said Carlton Larson, a law professor at the University of California, Davis.

“This would be a challenging case for the administration to try to pursue. I would think they would try to avoid having this in court as much as possible, and they ought to be trying to get some information out and get this resolved,” he said.

U.S. District Judge Tanya Chutkan, who was appointed to the bench in the nation’s capital by President Obama, will hear arguments Thursday.

The case goes beyond the Hamdi ruling. In that case, Hamdi’s father sought to intervene on his behalf. In this case, the ACLU argues it should be allowed to file motions as a “next friend” to the man. Although his identity is not known and he is inaccessible, he reportedly has expressed a desire for legal representation.

“The Trump administration is claiming the authority to detain a citizen for months without access to a judge or a lawyer based solely on its say so,” said ACLU attorney Jonathan Hafetz. “Such unchecked power flouts the most basic principles of the Constitution, which give all Americans the right to challenge indefinite imprisonment in court.”

According to Justice Department filings in the case, the man surrendered to the Syrian Democratic Forces on Sept. 12 and was turned over to U.S. troops. He has since been deemed an enemy combatant and is being detained in Iraq.

He’s had two visits from the International Committee of the Red Cross, which the government argues can provide assistance in contacting his family, who can then arrange for legal help.

“In the event that the detainee continues to be detained, it therefore is possible that a family member may seek habeas relief as the detainee’s next friend,” Department of Justice lawyers wrote in motions filed last month in the case.

They argue that the Department of Defense is “still in the process of determining the detainee’s ultimate disposition [and] should be given a reasonable period of time to determine a detained individual’s status, particularly in light of the judiciary’s reluctance to intrude on matters of military and national security concerns.”

“Here, the Department is still within that initial reasonable period,” DOJ lawyers wrote in motions filed nearly a month ago on Oct. 30.

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