It has been eight weeks since an unidentified American citizen suspected of fighting for the Islamic State in Iraq and Syria (ISIS) was captured by a Syrian rebel militia and turned over to the American military in Iraq.
He has remained in military custody since, with no indication of when — or if — he will be turned over to the U.S. Justice Department to face criminal prosecution.
His case loomed in the background last week as the Trump administration publicly grappled with whether to prosecute the suspect in the New York terror attack — a lawful permanent resident of the U.S. — or do as the president and some Capitol Hill Republicans suggested, and send him to the U.S. detention camp at Guantánamo Bay.
The Justice Department announced criminal charges on Wednesday, a decision that resurrected some of the fiercest policy debates of the post-9/11 era.
But on Capitol Hill, the fate of this other unknown citizen has gone widely unnoticed.
Many rank-and-file members of both parties in both the Senate and House Armed Services committees interviewed by The Hill over the course of weeks acknowledged that the issue was not on their radar. Some were completely unaware of the man’s existence.
“I have a lot of questions, but no answers because I really haven’t paid attention to it,” Sen. Tim KaineTimothy (Tim) Michael KaineDemocrats call on Biden administration to ease entry to US for at-risk Afghans Manchin, Sinema join GOP to sink filibuster change for voting bill Desperate Dems signal support for cutting Biden bill down in size MORE (D-Va.), a member of Senate Armed Services Committee, said Thursday.
Rep. Adam SmithDavid (Adam) Adam SmithHillicon Valley — Shutterfly gets hacked Biden signs 8 billion defense bill Overnight Defense & National Security — Democrats spar over military justice reform MORE (D-Wash.), the top Democrat on the House Armed Services Committee, said that he intended to push the administration for answers “soon,” but noted the committee has a full plate right now completing massive annual defense authorization legislation.
The two cases — along with that of a New York resident extradited from Bosnia last week and charged with aiding ISIS — are the first known opportunities for the Trump administration to signal how it will handle American citizens captured fighting for ISIS.
This is an extremely unsettled part of U.S. law that has vexed every administration since 9/11. Although the law is clearer when an American is captured fighting in an active combat theater, rather than carrying out a “lone-wolf” attack in the United States, U.S. policy on American enemy combatants has largely been decided by narrow, individual court rulings.
So far, the Trump administration has more or less followed the model embraced by former President Obama.
Detainee experts say there is little question that the military has the authority to hold a U.S. citizen or lawful permanent resident as an enemy combatant — a designation which denies the detained their Miranda warning and allows them to be interrogated under military rules.
But the government must be able to prove that the detainee is a fighter for an enemy force with whom the U.S. is in a state of armed conflict.
Both the Trump and Obama administrations have claimed that ISIS is an “associated force” covered by the military authorization that Congress passed in 2001, after the 9/11 attacks.
But the courts have not yet weighed in on that rationale, and both conservative and liberal legal analysts say the government is on risky legal footing. The American Civil Liberties Union (ACLU) has already challenged the detention of the unidentified American, known only as John Doe, arguing that the U.S. military has no legal authority to hold ISIS fighters under that 2001 authorization.
The government has pushed back, arguing that the ACLU lacks standing because it has no prior relationship with Doe.
This is one of the reasons that the U.S. hasn’t sent anyone to Guantánamo Bay since 2008 — sending an ISIS fighter or ISIS-inspired attacker to the detention facility would almost certainly trigger an immediate legal challenge that the government could lose.
Sending an American to Guantánamo Bay for the first time would raise even more unanswered questions about what additional legal protections a detainee would be entitled to as a U.S. citizen.
Instead, the Obama administration embraced an approach known as the “hybrid option.”
Under that model, an individual is detained in military custody for an unspecified period of time and interrogated. Then an FBI “clean team” is brought in, which reads the individual their Miranda rights and kick-starts a civilian prosecution.
According to The Washington Post, Justice Department officials don’t believe they have enough evidence to charge Doe — leaving open the possibility that he could languish in military detention for far longer than eight weeks.
In one previous high-profile detention case, the government was able to hold a U.S. citizen captured in the United States for over 1,300 days. The Supreme Court dismissed that case on procedural grounds without ever deciding the merits.
Absent litigation — like the ACLU case — there is no obvious trigger that will force the Trump administration to transfer Doe from military custody into the civilian criminal system.
“This is why the standing issue is such a big deal, because if the government wins on standing, then it buys itself even more time to figure out what to do with Doe,” said Steve Vladeck, a national security professor at the University of Texas Law School. “And I would have thought seven weeks was enough.”
“I think if they had enough evidence to bring a criminal case against John Doe, they would have done it by now.”
Defenders of Guantánamo Bay, such as Sen. Lindsey GrahamLindsey Olin GrahamSenators huddle on Russia sanctions as tensions escalate Juan Williams: It's Trump vs. McConnell for the GOP's future Biden's year two won't be about bipartisanship MORE (R-S.C.), argue that military detention is needed to adequately interrogate terror suspects.
“You’ll never convince me that the best way to gather intelligence in this war, which is now in our backyard, is to read somebody their Miranda rights telling them they have the right to remain silent,” Graham said last week, calling for a change in policy under the new administration.
Supporters of using the criminal justice system point out that there is a “public safety” exception to the Miranda rule that allows the government to interrogate suspects without complying with it — and in some cases allows prosecutors to use a suspect’s statements against them in court.
Military commissions — the body that would try an enemy combatant at Guantánamo Bay — have also proved extremely inefficient in prosecuting suspects. They have produced only eight convictions in 15 years, three of which were thrown out on appeal.
The Justice Department has successfully obtained more than 600 convictions on terrorism charges since 9/11, few of which have been overturned on appeal.
“The enemy combatant thing is a murky, murky area at best,” Smith said. “Once you dive into the murky world of enemy combatants, you potentially lose the ability to get the conviction and the long-term incarceration that’s needed.”