A U.S. citizen held as an enemy combatant suspected of fighting for the Islamic State is at the center of a major legal battle between the Department of Defense (DOD) and the American Civil Liberties Union (ACLU).
The DOD confirmed to a federal judge Thursday evening that the citizen had asked for an attorney but had not been provided one, given his enemy combatant status. The American citizen, whose name has not yet been disclosed, is said to a dual U.S.-Arab citizen who surrendered himself to U.S.-backed Syrian forces.
“This is the exceptional circumstance. This is the nightmare scenario,” ACLU attorney Jonathan Hafetz told the court Thursday, adding that the citizen is in a legal “black hole.” Justice Department lawyers conversely argued that the citizen is being held for a short period while the government figures out what exactly to do with him.
Previous reports indicate however that the government is at an impasse with the captured fighter. Justice Department officials reportedly cannot charge him without a confession as no direct evidence of his ties to the group exist. The U.S. now faces the difficult choice of whether to hold the fighter in the Guantanamo Bay prison, transfer him to Iraqi custody, or to the Middle Eastern country with which he holds dual citizenship.
Transferring the fighter to Guantanamo Bay prison or Iraqi custody will almost certainly bring major legal fights, which could imperil broader U.S. policy. The legal construct surrounding the dozens of terrorist detainees remaining at Guantanamo Bay remains tenuous, and officials reportedly fear that the ISIS fighter’s transfer to the site could disrupt the delicate balance reached after years of litigation.
Transfer to Iraqi custody also remains a possibly undesirable course of action. The Iraqi government has faced widespread allegations of torture and unjust imprisonment. Knowingly turning over an American citizen into such conditions is a violation of U.S. law.
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