The ACLU and the Trump administration are now haggling over where to release a U.S. citizen in the Middle East after the government finally declined to label him an enemy combatant.
Government lawyers say the man, a dual citizen of the U.S. and Saudi Arabia, was captured on a battlefield in Syria and should be released back into that country.
The American Civil Liberties Union, which is defending the man, asked a judge Friday to order him to be released into Iraq, where he can get access to a consulate, rather than Syria.
“He was fleeing Syria,” said Jonathan Hafetz, an ACLU lawyer, who said the man, identified as “John Doe” in court, was apprehended while trying to leave Syria.
It appears the detainee was originally captured by allied forces, which in turn handed him over to the U.S., though much of the record remains under seal. The man has been detained by the U.S. in Iraq for roughly 10 months.
The Defense Department originally wanted to release him into Saudi custody, but the courts rejected that proposal in May, saying the government couldn’t transfer a U.S. citizen to a foreign power in that way.
Mr. Hafetz told Judge Tanya S. Chutkan, an Obama appointee, that the U.S. government brought the man to Iraq, so they should release him there to ensure he can reach a consulate and obtain a passport.
The ACLU rejects the government’s proposal to return the man to Syria with documents identifying his dual citizenship, saying there are no consular services in Syria and he would be put back in the situation he was trying to flee.
“It’s a death trap,” Mr. Hafetz said. “It is an insane proposal.”
James Burnham, who argued on behalf of the Justice Department, contended the area in Syria where the man would be returned is safe and the government’s proposal is standard military practice.
He urged the judge to follow higher court precedent, which has deferred to the Department of Defense on such issues pertaining to the release of detainees.
“Syria is the place he went,” Mr. Burnham said. “He did assume the risk.”
Mr. Doe was captured in Syria after crossing the border from a neighboring country where was staying in an attempt to go to Turkey.
Judge Chutkan appeared hesitant to overstep the court’s role, but raised concerns over the man’s safety if he’s released to an area where he would sustain bodily injury or even death.
“This is not an area where courts are frequently asked to weigh in,” she said, adding it’s “not something I’m anxious to do.”
The judge said she would issue her decision in seven days.