Thursday afternoon, the DoD was told that they could not do something that they had done dozens of times since the beginning of the Global War on Terror, all because one District Court Judge blocked the action. According to U.S. District Judge Tanya Chutkan, the United States may not be able to legally transfer the alleged ISIS detainee to the custody of another nation. Because of this, she has issued a 5-day injunction against the action, which means that pending a final decision on the legality of the transfer, the alleged ISIS detainee will remain in American custody.
Judge Chutkan, an Obama-era appointee to the U.S. District Court, is bowing to pressure from the ACLU, who has been representing the detainee since December. Blocking the transfer in the short-term is designed to give the ACLU time to better argue their case from multiple standpoints, in hopes of preventing a transfer of the detainee to another foreign power.
The Department of Defense has been trying to move the unnamed detainee for months, but they have also been trying to block the detainee, who holds dual citizenship in the United States and Saudi Arabia, from access to the courts. It is only with the assistance of the American Civil Liberties Union (ACLU) that the detainee was able to get a hearing over whether or not he could be legally handed over to another sovereign nation.
Further complicating the matter is the fact that the detained alleged ISIS member has not been accused of any crime in any foreign nation, and that the United States doesn’t have much evidence, other than the circumstances of his capture, to suggest that the detainee has committed any crime.
The United States has also been remiss in their treatment of the alleged terrorist detainee, even going so far as to prevent him from communicating with outside legal aide. There are basic principles concerning what treatment prisoners of the United States military (and the federal government in general) are expected to receive, and a failure to live up to those precepts is disturbing. The United States has prided itself on being a nation that provides a measure of justice to all, and the idea that the Department of Defense would work hard to prevent anyone, even an alleged terrorist, from having their proper day in court is a disappointing one.
The ongoing argument between the United States Department of Defense, the U.S. District Court (represented by Judge Tanya Chutkan), and the American Civil Liberties Union is an extremely complex debate about the status of the detainee and whether or not he can be transferred without an accusation of a crime in a foreign land.
The Department of Defense, who continues to hold the alleged ISIS combatant, maintains that the unidentified U.S. citizen and ISIS combatant has few if any rights, even though he is a U.S. citizen. Further, the DoD says that they are allowed to release detainees however they like, and maintain that handing the detainee over to another nation would qualify as a ‘release’, inasmuch as the individual would be leaving U.S. custody.
The American Civil Liberties Union, on the other hand, suggests that there remain multiple holes in the DoD’s stance. To begin with, they object to the fact that since the unnamed citizen was detained in September, the DoD did its best to prevent them from being able to communicate with anyone. They contend that blocking the detained citizen from being able to communicate with a lawyer prevented him from beginning court proceedings, and essentially acted as a ‘constructive denial’ of the detainee’s habeas corpus rights.
For her part, Tanya Chutkan seems to be coming down on the side of upholding past U.S. Supreme Court decisions and mandates and abiding by precedents they have set. In December, it was Judge Chutkan who ordered the DoD to allow the ACLU to communicate with the unnamed detainee. It will be Judge Chutkan who has the final say, sometime early next week, as to whether or not the DoD can transfer the detainee to the Saudis (or any other foreign nation).
There are a number of unresolved legal issues that still arise from the Global War on Terror. In this case, the question is whether or not the Authorization for the Use of Military Force passed almost immediately after 9/11 can be extended to cover the fight against ISIS in Syria and Iraq is likely to be the most important. As this is a concept of no small legal debate, the case of this unnamed alleged ISIS member may well become a Supreme Court case that sets precedent for decades to come.
No matter what Judge Chutkan decides next week, the case may just be beginning for both the detainee and the United States government.