- The Washington Times - Thursday, November 30, 2017

An American being held as an enemy combatant in military custody in Iraq has asked for a lawyer and is refusing to speak to the FBI, the Justice Department disclosed Thursday in a case testing the constitutional rights of detainees.

The American Civil Liberties Union has asked a judge to provide legal representation to the person, who hasn’t been identified. The Justice Department has opposed the ACLU, saying it doesn’t have standing to represent the man because the group has no established relationship with him.

But the new revelations that the detainee has sought a lawyer could boost the ACLU’s case.

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“This admission by the government reinforces our demand that the citizen be given access to a lawyer, which is his fundamental right under the Constitution,” ACLU attorney Jonathan Hafetz said. “The Trump administration’s position that it can secretly lock up an American without charges or the ability to challenge the detention in court is not how our legal system works.”

Following a contentious hearing Thursday, U.S. District Judge Tanya Chutkan ordered the government to disclose whether the man had been advised of his rights or asked for a lawyer during the 2.5 months he’s been detained.

In its response to Judge Chutkan’s order, the Justice Department stated that FBI agents who sought to interview the man told him he had a right to speak with an attorney.

The man initially told to the agents he understood his rights and “said he was willing to talk to the agents but also stated that since he was in a new phase, he felt he should have an attorney present.”

“The individual later made clear in connection with his subsequent request to speak with an interrogator that the individual did not wish to speak with agents of the FBI,” the Justice Department said.

In past enemy combatant or terrorism cases, U.S. authorities used a two-tier approach to questioning individuals, interviewing them for intelligence purposes first before allowing a “clean team” of federal investigators agents to interview them for law enforcement purposes.

Authorities have not released the man’s identity, and said only that he was captured by U.S.-backed forces in Syria on Sept. 12 and later taken to a facility in Iraq. No criminal charges have been filed against him.

Justice Department attorney Kathryn Wyer said during Thursday’s hearing in a federal court in Washington, D.C., that the Defense Department is still in the preliminary stages of evaluating what to do with the man.

She said the government was entitled to a “reasonable period of time” to come to that assessment.

Judge Chutkan was visibly irritated as she questioned the Justice Department lawyer.

“How long do you think they get to detain him until they decide what to do with him? Six months?” she asked, with her arms crossed. “Do they get to decide what is reasonable?”

Ms. Wyer said she did not know how long it might take, but said the government could be evaluating whether to criminally charge the man, turn him over to another country that might have interest in charging him, or continuing to further detain him in military custody.

The judge likened the man’s detention to a scenario in which the government could snatch any citizen off the street and hold the person indefinitely as an enemy combatant without access to a lawyer.

“That kind of unchecked power is quite frankly, frightening,” she said.

Ms. Wyer argued that the man was not in fact being held “incommunicado” and noted that he had been visited twice by the International Committee of the Red Cross. She said any requests to notify the man’s family of his status or desire for an attorney could have been passed on to the humanitarian group.

“He was not snatched up off the street in Kansas,” Ms. Wyer said.

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