This Judge Isn’t Buying The Trump Admin’s Excuses For Holding A U.S. Citizen ‘Incommunicado’

WASHINGTON ― A fed­er­al judge on Monday aggres­sive­ly ques­tioned a Justice Department attor­ney about the Trump administration’s con­tention that it can con­tin­ue hold­ing an unnamed U.S. cit­i­zen ― who has asked for an attor­ney ― out of the reach of lawyers who wish to rep­re­sent him.

U.S. District Judge Tanya Chutkan said she was “not sure” it was “con­scionable” that she could allow the U.S. gov­ern­ment to con­tin­ue hold­ing the American, who was tak­en into cus­tody in Iraq three months ago, with­out giv­ing him the abil­i­ty to chal­lenge his pro­longed deten­tion as unlaw­ful, through what’s known as a habeas cor­pus peti­tion.

What the gov­ern­ment is sug­gest­ing is an end run around the right to habeas,” Chutkan said. “He wants coun­sel, which is an asser­tion and request that I don’t think I can ignore.”

The American Civil Liberties Union had filed a habeas cor­pus peti­tion on behalf of the unnamed American, an alleged fight­er for the Islamic State mil­i­tant group. Chutkan, an Obama appointee, indi­cat­ed on Monday that she’d made her rul­ing in the case “as quick­ly” as pos­si­ble.

Justice Department attor­ney Kathryn Wyer, rep­re­sent­ing the Trump admin­is­tra­tion, argued that the gov­ern­ment was try­ing to resolve the sit­u­a­tion quick­ly. Wyer said the American “didn’t give any indi­ca­tion of urgency” to the FBI when they met with him and when he request­ed a lawyer.

Wyer sug­gest­ed the unlike­ly pos­si­bil­i­ty that the American might know the details of a legal bat­tle involv­ing the habeas rights of pri­or Guantanamo detainees, or that he knows the dif­fer­ence between habeas cor­pus and his Miranda rights ― a dis­tinc­tion most peo­ple are unfa­mil­iar with. She sug­gest­ed it was pos­si­ble that the American only want­ed a lawyer for ques­tion­ing, not to assert his habeas cor­pus rights.

Chutkan didn’t seem to buy that.

He says he wants coun­sel ― isn’t that enough?” she asked. How on earth, the judge said, would this per­son be able to exer­cise their habeas cor­pus rights if they’re effec­tive­ly being held incom­mu­ni­ca­do?

Under those cir­cum­stances, the right to habeas is mean­ing­less,” Chutkan said.

Wyer argued that stand­ing was still an issue, and that the ACLU was a “third-par­ty stranger” to the case. But Chutkan said the ACLU isn’t just some per­son off the street ― it’s a group with “exten­sive expe­ri­ence” with these types of cas­es.

Jonathan Hafetz, the ACLU lawyer, said he was “flab­ber­gast­ed” by the government’s argu­ments, and said the gov­ern­ment was ask­ing for a “blank check” to hold U.S. cit­i­zens over­seas for indef­i­nite peri­ods of time, even when they’d request­ed a lawyer.

Chutkan shook her head in agree­ment sev­er­al times dur­ing Hafetz’s pre­sen­ta­tion, and had no ques­tions for him. She didn’t explic­it­ly say how she’d rule, but left lit­tle doubt that she’d come down against the gov­ern­ment. https://​www​.huff​in​g​ton​post​.com/​e​n​t​r​y​/​a​m​e​r​i​c​a​n​-​i​s​i​s​-​a​c​l​u​-​c​a​s​e​_​u​s​_​5​a​2​e​b​5​d​8​e​4​b​0​c​7​8​0​1​1​3​7​4​1​e​f​?​n​c​i​d​=​i​n​b​l​n​k​u​s​h​p​m​g​0​0​0​0​0​009