Judge: US must give notice before moving American ISIS suspect from Iraq
By SPENCER S. HSU | The Washington Post | Published: January 24, 2018
A federal judge Tuesday said U.S. authorities must give 72 hours' notice before transferring an American held for four months without charges in Iraq to another country, to give his attorneys with the American Civil Liberties Union time to contest a move.
The government has held the U.S. citizen as an "enemy combatant" and suspected member of the Islamic State since he surrendered in Syria to the rebel Syrian Democratic Forces, which turned him over to the U.S. military on Sept. 14.
U.S. District Judge Tanya Chutkan of the District of Columbia stopped short of barring a transfer, saying the government has not decided on that option and could also release him or bring him to the United States to face charges.
The ACLU filed suit Oct. 5 to represent and challenge the detention of the man, whose identity has not been released. After Chutkan ordered the government to allow the ACLU to speak with him Jan. 3 by Pentagon videoconference, he authorized the group to file a habeas corpus petition on his behalf.
The ruling increases the chance that the case will be the first test of whether U.S. citizens captured on a battlefield as suspected Islamic State fighters can assert the same right to challenge their detentions that was established by the Supreme Court for Americans suspected of belonging to al-Qaeda and other terrorist groups after the 9/11 attacks.
The case has been difficult for U.S. authorities. The Washington Post reported in October that Justice Department officials did not think they had enough evidence to charge the man, who invoked his right to an attorney, halting his interrogation.
The New York Times reported that the Trump administration was considering transferring him to Saudi Arabia under restrictions and that the man was a dual Saudi national.
In an eight-page opinion, Chutkan said the detainee "has shown a likelihood of success on his claim that this court may temporarily restrict" the Pentagon's ability to transfer him while the court decides the legality of his detention. She said the Defense Department "must present 'positive legal authority' for his transfer," such as an extradition treaty or allegation of criminal conduct in another country.
The government argued against any limitation, citing "significant national security and foreign relations concerns" surrounding his transfer, arguments that Chutkan wrote she found "unavailing."