American ISIS Fighter Can Meet With Lawyer, Judge Says

REUTERS/Erik De Castro

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Kevin Daley Supreme Court correspondent
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The U.S. military must allow an unnamed U.S. citizen held in Iraq as an enemy combatant access to legal counsel, a federal judge in Washington, D.C., ruled Friday.

The combatant has been held in Iraq since September on suspicion of fighting for the Islamic State. Judge Tanya Chutkan found the ACLU can meet with the prisoner to determine if he wishes to retain a lawyer.

“Ordering the government to allow the ACLU access to this American is an essential protection of his constitutional rights and a major victory for the rule of law against unchecked executive power,” ACLU attorney Jonathan Hafetz said in a statement.

The controversy was occasioned in September when a Syrian militia captured the individual in ISIS-held territory. He was transferred to the U.S. armed forces, who immediately classified him as an enemy combatant. Held at an undisclosed location in Iraq, the detainee has not been permitted access to a lawyer or to his family, though the Red Cross has met with him on several occasions.

The ACLU filed a habeas corpus petition on the prisoner’s behalf on Oct. 5.

The government argued the ACLU has no standing to intervene in the case, and that the detainee has no right to counsel while the administration determines how to dispose of his case. In rebuttal, the ACLU said they can represent the detainee under “next friend standing.”

Next friend standing is granted when a third party wishes to proceed on someone else’s behalf. The “next friend” must demonstrate that they are dedicated to the real party’s best interest and that the real party cannot proceed on their own due to some incapacitation.

The court agreed the ACLU satisfied these requirements, and ordered the military to allow them access to the detainee. Friday’s order only allows the ACLU to determine if the detainee wishes to retain the organization as his legal counsel. If he rejects their offer, they will not be permitted further access.

The court also forbade transferring the combatant to the custody of a foreign power. The New York Times reported Dec. 20 that the Trump administration is considering transferring the combatant to Saudi Arabia, as he was born to Saudi parents.

The Department of Justice is considering an appeal.


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