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Thread: ACLU Foundation v. Mattis

  1. #1

    Default ACLU Foundation v. Mattis

    Background:

    https://www.justsecurity.org/45607/i...emy-combatant/

    https://www.aclu.org/cases/aclu-foundation-v-mattis

    On October 5, the ACLU Foundation filed a habeas corpus petition on behalf of an unidentified U.S. citizen unlawfully detained by the U.S. military in Iraq since approximately September 14 for allegedly fighting with the Islamic State group in Syria. The military has refused to make the citizen’s identity public or grant him access to counsel or a court. Following a court order requesting information, the government admitted that the American has asked for an attorney.
    Early analysis:

    https://www.lawfareblog.com/why-plig...ould-alarm-you

    In a nutshell, Ben isn’t worried about the fact that a U.S. citizen has been held in incommunicado military detention for almost a month because (1) the problem of military detention of Americans “turned out to be self-limiting, because holding people in military detention created more problems than it solved legally for the government”; (2) the U.S. citizens who were subjected to military detention ended up being so held for periods that were “relatively brief”; and (3) the Supreme Court’s 2004 decision in the Hamdi case both sustained the legality of the government’s detention authority even over citizens and required enough process to ensure that “military detention of citizens was not going to be a zone of unaccountable executive discretion.” Taking all of these together, Ben concludes that: “I have no particular discomfort with the short-term military detention of citizens, particularly in combat theaters, but I’m glad such detainees have habeas rights to put pressure on the government to keep detention short and to look for more attractive long-term dispositions.”

    I have three problems with this analysis:

    [...]
    https://www.lawfareblog.com/assessin...combatant-iraq

    4. Prediction: Within a week or so, John Doe will be en route to the U.S. to face civilian prosecution.
    This was written in October.

    Fast forward:

    https://www.aclu.org/legal-document/...-habeas-corpus

    PetitionerAmerican Civil Liberties Union Foundation is filing this petition for a writ of habeas corpus as next friend on behalf of an unnamed U.S. citizen (“Unnamed U.S. Citizen”) currently being unlawfully detained by the United States military in Iraq without charge, without access to counsel, and without access to a court. The U.S. military has refused to disclose publicly the name or location of this U.S. citizen. Respondent, General James N. Mattis, is the United States Secretary of Defense and Unnamed U.S. Citizen’s ultimate military custodian. Respondent’s failure to present Unnamed U.S. Citizen to a federal court or to otherwise justify his detention violates the federal habeas corpus statute, 28 U.S.C. § 2241 et seq., the Non-Detention Act of 1971, 18 U.S.C. § 4001(a), and the Fourth, Fifth, and Sixth Amendments to, and the Suspension Clause of, theUnited States Constitution. It also exceeds any detention authority granted by the Authorization for Use of Military Force, Pub. L. 107-40, 115 Stat. 224 (2001), the Authorization for Use of Military Force against Iraq Resolution of 2002, Pub. L. No. 107-243, 116 Stat. 1498 (2002), and the National Defense Authorization Act for Fiscal Year 2012, Pub. L. 112-81, 125 Stat. 1298 (2011). PetitionerAmerican Civil Liberties Union Foundation, as next friend, petitions this Court for a writ of habeas corpus directing Respondent to: (1) provide attorneys from the ACLU Foundation with prompt access to Unnamed U.S. Citizen to inform him of his legal rights and to afford him the opportunity of legal assistance; (2)transfer Unnamed U.S. Citizen into civilian law-enforcement custody to face criminal chargesor release him; (3) provide Unnamed U.S. Citizenwith a meaningful opportunity to challenge his detention before a federal judge; and, (4)halt any continued interrogation of Unnamed U.S. Citizen.
    https://www.lawfareblog.com/aclu-v-m...-habeas-corpus

    For what it is worth, I think the government’s position on the notional legality of this detention is quite strong (though, obviously, it raises serious and unsettled questions), and I have no view at all on the factual situation (since I have so little information on which to rely).

    Instead, I’m talking about something quite different: the government’s apparent position that it can prevent courts from addressing those very questions via habeas review simply by declining indefinitely to identify a citizen whom it has detained (or at least for as long as it wishes to explore other potential long-term disposition options for a citizen who is, all the while, held as an enemy combatant).

    This claim contains a dangerous principle, and it should be rejected. But it must be rejected with nuance. [...]
    Approaching three months now. I'm glad to see we're being extremely thorough.
    "One day, we shall die. All the other days, we shall live."

  2. #2
    Hope is the denial of reality

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