WASHINGTON — A federal judge late Saturday night ordered the Trump administration to allow the American Civil Liberties Union immediate and unmonitored access to an American secretly detained by the U.S. military in Iraq for months, in order to ascertain whether he wants to challenge his detention in court and whether he wants to be represented by the ACLU or other counsel.

“It’s critical that the judge has rejected the Trump administration’s attempt to thwart judicial scrutiny of the detention of a U.S. citizen,” said ACLU attorney Jonathan Hafetz, who argued in court on the issue on December 11. “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.”

The decision by Judge Tanya Chutkan of the federal district court in Washington, D.C., denied the government’s motion to dismiss an ACLU habeas corpus petition challenging the unidentified citizen’s detention. The judge’s ruling also ordered the government to refrain from transferring the American until the ACLU gains access to him and informs the court of his wishes. The New York Times had reported last Wednesday that the Trump administration was considering transferring the detainee to Saudi Arabia.



In her ruling, Judge Chutkan called “disingenuous at best” the government’s argument that the ACLU’s suit should be dismissed because the ACLU did not know the detainee’s wishes when the government itself was blocking the detainee from meeting with the ACLU. The judge also deemed the government’s claim that the detainee should continue to be denied a lawyer until it decides what to do with him “remarkable and troubling.”

In response to a court order issued during the first hearing in the case on November 30, the government informed the court that the FBI agents questioning the American “for law enforcement purposes” advised him of his Miranda rights and that he has asked for a lawyer.

The government still has not identified the citizen, who has been held as an “enemy combatant” since approximately September 14 for allegedly fighting on behalf of ISIS in Syria.

The judge’s ruling is here: https://www.aclu.org/legal-document/aclu-v-mattis-order

All documents filed in the case are here: https://www.aclu.org/cases/aclu-foundation-v-mattis