An unnamed U.S. citizen held for the past 11 weeks as an enemy combatant in Iraq was informed of his right to counsel, the government revealed on Thursday, but was told that “due to his current situation, it was unknown when he would be able to have an attorney.”
John Doe, who was captured in mid-September while apparently fighting with ISIS, has not been interrogated for law enforcement purposes since he was read his Miranda rights, according to a filing in federal court, but it is unclear if he’s been questioned further by the military.
The Department of Justice did not disclose when Doe, who remains in military custody, was questioned by the FBI, and it’s unclear how long he was detained before he was informed of his rights.
At that unknown time, Doe said that he understood his rights and was willing to talk to the FBI but “since he was in a new phase, he felt he should have an attorney present,” according to the filing.
“The agents explained that due to his current situation, it was unknown when he would be able to have an attorney, and the individual stated that it was ok and that he is a patient man,” the Justice Department reports.
Doe then asked where he would be when he next saw the agents with his attorney, “in his current location or somewhere else.”
The FBI told him they were uncertain when they would see him again.
He “later made clear in connection with his subsequent request to speak with an interrogator that the individual did not wish to speak with agents of the FBI,” the government reports.
The forced Justice Department disclosure came by the order of U.S. District Judge Tanya Chutkan, who on Thursday morning demanded that the government provide her the information so she can weigh a legal bid by the American Civil Liberties Union (ACLU) to represent Doe.
The Justice Department tried to convince Chutkan that the court had no jurisdiction over Doe’s case because, it says, the ACLU has no standing to represent Doe given that they do not know who he is and do not have a relationship with him.
The case, which Chutkan said has no exact legal precedent, has the potential to reshape an already unsettled part of U.S. law that has vexed every administration since 9/11: How to handle U.S. citizens captured fighting for foreign terrorist groups.
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 rights and allows them to be interrogated under military rules.
Although the law is clearer when an American, such as Doe, 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.
The Obama administration embraced a model known as the “hybrid option” to handle similar cases.
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.
So far, that is the model that the Trump administration appears to be following with Doe. But it remains unclear how long he will remain in military custody before he will be given access to legal representation in a criminal case — or if he will be charged in federal court at all.
Justice Department lawyer Kathryn Wyer noted Thursday that the government has multiple options at its disposal, including turning the individual over to a foreign government.
She said Thursday that the government is still in a preliminary phase of determining what to do with Doe and that it is not attempting to hold him “indefinitely.”
When asked by Chatkan how long the government can continue to hold him, Wyer responded that the question was not being considered by the court but said that the government is working “diligently” to make a determination.
The case presented “troubling” questions, Chatkan said, signaling an intense discomfort with the government’s position.
“As I see it, the government could snatch any U.S. citizen off the street and hold him as an enemy combatant as long as it took,” she said.
“That kind of unchecked power is quite frankly frightening.”