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WSJ, 24 Dec 2017

A federal judge ruled the military must provide immediate access to legal counsel for a U.S. citizen being held as an enemy combatant at a secret location in Iraq.

The unnamed U.S. citizen was captured in September by Syrian opposition forces fighting Islamic State and transferred to U.S. custody in Iraq, court records show. He has yet to be granted access to a lawyer.

Following his arrest, the American Civil Liberties Union filed a habeas corpus petition on behalf of the detainee.

In a 12-page ruling issued late Saturday, Judge Tanya S. Chutkan said the government should provide the ACLU with immediate and unmonitored access to the prisoner. The prisoner could then choose to be represented by the ACLU or court-appointed counsel.

Since the man’s detention, the U.S. military has kept secret the details of the case. The prisoner has been granted access to the International Committee of the Red Cross, which monitors the well-being of prisoners and can deliver messages to relatives.

The ICRC has twice visited the detainee, but the details of those meetings and whether the prisoner’s family has been notified are confidential.

U.S. officials are seeking to determine if the man has links to Islamic State fighters battling U.S.-backed forces in Iraq and Syria, according to the government and court filings.

Judge Chutkan said the ACLU had demonstrated it was dedicated to the detainee’s best interests, court records show. She called the Department of Defense’s position “disingenuous at best” because it was the sole impediment to the ACLU’s ability to meet and confer with the detainee.

The judge also ordered the Department of Defense to refrain from transferring the prisoner to Saudi Arabia after the ACLU filed copy of a New York Times report that said the man was born to Saudi parents and could be transferred.

The ACLU’s petition parallels, in some ways, the cases of prisoners captured during the U.S. war on terror, triggered by the attacks on the U.S. on Sept. 11, 2001, but it is unusual because the detainee was captured in Syria and hasn’t had any communication with the ACLU.

After a Nov. 30 hearing, the government disclosed the prisoner had requested a lawyer in the presence of Federal Bureau of Investigation special agents after being read his Miranda rights soon after his capture, court records show.

The FBI agents told the man that it was unclear when a lawyer might be available to him. The prisoner responded that was “ok and that he is a patient man,” the court records said.

“This is a critical ruling that rejects the Trump administration’s unprecedented attempt to block an American citizen from challenging his executive imprisonment,” said Jonathan Hafetz, the lead ACLU lawyer on the case, in a statement sent after the ruling. He said the decision was “essential to preserving the Constitution and the rule of law in America.”

The Justice Department didn’t immediately respond to request for comment on whether it would appeal the order.