US-Saudi citizen to challenge his military detention

The unnamed U.S. citizen held in military detention now for four months has told the American Civil Liberties Union (ACLU) that he wishes to challenge his detention in court and that he wants the ACLU to represent him, according to court documents filed by the organization on Friday. 

The ACLU spoke to John Doe by video conference on Wednesday, it said. A federal judge had previously ordered the government to allow the ACLU to speak to Doe to ask if he wanted representation. The civil liberties organization has been seeking to represent Doe as a so-called next friend, which the government has opposed on the grounds that it had no prior relationship to Doe. 

The government has refused to identify Doe, other than to confirm his detention and his citizenship. Jonathan Hafetz, the ACLU lead attorney on the case, said Friday that Doe had requested that the organization not disclose his identity but did confirm that he was born on U.S. soil. The conversation on Wednesday took place in English, said Hafetz, who declined to provide any other details. 

The Hill previously reported that Doe also holds a citizenship in Saudi Arabia. The New York Times has reported that Doe was born in the United States to visiting Saudi parents, citing officials familiar with the case — but little else is known. 

Captured by Syrian forces in mid-September while apparently fighting with ISIS, Doe was then turned over to the U.S. military, which has maintained custody of him while the government wrestles with what to do with him. He has been read his Miranda rights, according to court filings, and has not been interrogated for law enforcement purposes since. It is unclear if he’s been questioned further by the military.

Doe’s case has stymied the Trump administration, which reportedly does not believe it has enough evidence to try him in criminal court but doesn’t want to simply release him. According to the Times, officials had decided to pursue transferring Doe into Saudi custody. In late December, U.S. District Judge Tanya Chutkan ordered the government not to pursue such a transfer, a restriction that the ACLU on Friday urged her to continue while the case is ongoing. 

The Justice Department tried to convince Chutkan that the court had no jurisdiction over Doe’s case because, it said, the ACLU has no standing to represent Doe given that they do not know who he is and do not have a relationship with him. But that reasoning did not sway Chutkan, who called the argument “circular” and said that the case presented “troubling” questions. 

“As I see it, the government could snatch any U.S. citizen off the street and hold him as an enemy combatant as long as it took,” she said in a hearing in November. “That kind of unchecked power is quite frankly frightening.”

The case, which Chutkan said has no exact legal precedent, has the potential to reshape an already unsettled part of U.S. law that has vexed every administration since 9/11: How to handle U.S. citizens captured fighting for foreign terrorist groups.

Detainee experts say there is little question that the military has the authority to hold a U.S. citizen or lawful permanent resident as an enemy combatant — a designation that denies the detained their Miranda rights and allows them to be interrogated under military rules.

Although the law is clearer when an American, such as Doe, is captured fighting in an active combat theater, rather than carrying out a “lone wolf” attack in the United States, U.S. policy on American enemy combatants has largely been decided by narrow, individual court rulings.

The Obama administration embraced a model known as the “hybrid option” to handle similar cases.

Under that model, an individual is detained in military custody for an unspecified period of time and interrogated. Then an FBI “clean team” is brought in, which reads the individual their Miranda rights and kick-starts a civilian prosecution.

The U.S. has also sent detainees to Saudi Arabia in the past, where there is a government-run rehabilitation program for extremists that was started in the mid-2000s. The flagship site sits on a former resort property in Riyadh and boasts a swimming pool and art therapy for detainees referred to as “beneficiaries.”

In past transfer cases from the U.S. detention facility at Guantanamo Bay, the government hammered out very specific agreements related to how the receiving country’s intelligence services would monitor the transferred individual. In one 2004 case involving a U.S. citizen, the detainee, Yaser Hamdi, renounced his U.S. citizenship as part of the transfer. Hamdi had access to a lawyer. 

Some Republicans on Capitol Hill, including Sen. Lindsey Graham (S.C.), have called for American enemy combatants to be sent to Guantanamo Bay — but that would open a legal can of worms that the government would prefer to avoid. 

In order to classify a person as an enemy combatant, the government must be able to prove that the detainee is a fighter for an enemy force with whom the U.S. is in a state of armed conflict. Both the Trump and Obama administrations have claimed that ISIS is an “associated force” covered by the military authorization that Congress passed in 2001, after the 9/11 attacks.

But the courts have not yet weighed in on that rationale, and both conservative and liberal legal analysts say the government is on risky legal footing. Transferring a U.S. citizen to Guantanamo Bay would virtually guarantee immediate legal challenges on that basis. 

Although Chutkan signaled her intense discomfort with the government’s position on how long it could hold Doe, she did not address that underlying legal debate during the November hearing. 

But if Doe’s habeas case proceeds, Chutkan could be given an opportunity to rule on a deeply disputed piece of national security law. 

“He spoke loud and clear,” Hafetz said Friday. “I want my day in court and I want a lawyer to demonstrate there’s no basis to hold me.”