- The Washington Times - Thursday, November 30, 2017

A federal judge presiding over a challenge regarding a U.S. citizen’s detention abroad as an enemy combatant has ordered the Trump administration to answer two questions regarding the man’s legal rights following a contentious hearing Thursday.

U.S. District Judge Tanya Chutkan expressed marked frustration over a federal prosecutor’s “circular” arguments during Thursday’s hearing in D.C. and questioned the rationality of the government’s assertion that a civil liberties group cannot file motions on the man’s behalf because the group has not been been in contact with the man. The man’s identity is unknown and he has been been held in military confinement since he was captured in Syria in mid-September.

“That kind of unchecked power is quite frankly, frightening,” Judge Chutkan said, likening the man’s detention to a scenario in which the government could snatch any citizen off the street and hold them indefinitely as an enemy combatant without allowing access to a lawyer.

By 5 p.m. Thursday, the government will have inform the court whether the man has been advised of his right to counsel and whether the man has asserted those rights while in confinement.

The American Civil Liberties Union filed the legal challenge, arguing that the Trump administration should not be able to hold the man without providing him access to legal counsel and has asked the court to allow the group the ability to inform the man of his right to counsel and to be able to provide him legal representation.

According to the Justice Department, the man surrendered to the Syrian Democratic Forces on Sept. 12 and was turned over to U.S. forces. He has since been deemed an enemy combatant and is being detained in Iraq while authorities work to determine his “further disposition.”

“This is the nightmare scenario where the government has locked up an American in secret,” said ACLU attorney Jonathan Hafetz in court. “There is no evidence here he does not want a lawyer.”

ACLU argued that it should be allowed to file motions as a “next friend” to the man because, although his identity is not known and he is inaccessible, he has reportedly expressed a desire for legal representation.

Judge Chutkan asked Justice Department attorney Kathryn Wyer multiple times during the hearing whether the man had been advised of his right to counsel, but was repeatedly told that by the attorney that she did not have that information and would have to check with the Department of Defense.

“I am not trying to be impatient but I am growing impatient because you are not answering my questions,” Judge Chutkan said.

“I don’t have an answer for those questions,” Ms. Wyer said.

“The court feels the need for that information,” Judge Chutkan said.

The government attorney at one point argued that the Department of Defense was still in the preliminary stages of evaluating what authorities plan to do with the man and that the government was entitled to a “reasonable period of time” to come to that assessment.

“How long do you think they get to detain him underlie the decide what to do with him? Six months?” Judge Chutkan asked. “Do they get to decide what is reasonable?”

Ms. Wyer said she did not know how long that assessment 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.

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