WASHINGTON (AP) — The Trump administration wants to transfer an American citizen detained in Iraq to a third, unnamed country, according to a court filing unsealed Tuesday.
The detainee could be transferred to Saudi Arabia, where he has dual citizenship, as early as Thursday, according to a U.S. official who was not authorized to discuss the issue and spoke only on condition of anonymity. The American Civil Liberties Union, however, said it would challenge the transfer in court.
The U.S. military has held the unidentified detainee, who once studied in Louisiana, without charge in Iraq since he surrendered on the Syrian battlefield last fall. His fate has become a test case for how the government should treat U.S. citizens picked up on the battlefield and accused of fighting with IS militants.
Court documents filed by the government say that when he surrendered to U.S.-backed Syrian Democratic Forces, he was carrying thumb drives containing thousands of files. There were 10,000 or more photos — some depicting pages of military-style manuals. There also were files on how to make specific types of improvised explosive devices and bombs.
The ACLU, which is representing him, claims he was in Syria to chronicle the conflict and was trying to flee the violence when he gave himself up in September 2017.
“The Trump administration has been detaining this American citizen unlawfully for more than seven months, and forcibly rendering him to another country would be an unconscionable violation of his constitutional rights,” said ACLU attorney Jonathan Hafetz.
“The government has no legal authority to detain this U.S. citizen in the first place, and it clearly lacks any legal authority to transfer him to the custody of another government. He should either be charged or freed, not handed over to an unnamed foreign government,” Hafetz said, adding that the ACLU will challenge the transfer in court.
A federal court judge ordered the government to give 72 hours’ notice before transferring the detainee. The government announced its plans to transfer him in a court filing late Monday. The filing was unsealed on Tuesday. The government also appealed the ruling requiring advance notice of any transfer, but a three-judge appeals panel has not yet ruled on that aspect of the case.
The government claims it is holding the detainee as a lawful enemy combatant under presidential authorities and say congressionally approved war powers written after 9/11 provide the legal basis to hold the detainee as an enemy combatant linked to IS.
“We made a good faith determination that he is an enemy combatant,” James Burnham, a lawyer representing the government, said at the appeals panel hearing earlier this month.
The ACLU claims the Trump administration is holding him illegally without charge and that the war powers cited by the government pertain to al-Qaida and the Taliban, not IS. Moreover, the ACLU says the executive branch does not have the power to unilaterally transfer an American citizen to a third country outside of the provisions of a treaty or international agreement or if the country wants to prosecute him for a crime.
“The U.S. can’t dispose of the liberty of an American citizen by forcibly transferring him to another country,” Hafetz argued at the hearing.
The ACLU claims the government has not provided any evidence that he took up arms against the United States. The detainee has told the ACLU that he had press credentials to do freelance writing about the conflict in Syria, although the FBI hasn’t found any published articles or blogs he authored.
The government said in its latest — heavily redacted — filing that the unnamed country agreed on March 6 to accept the detainee following extensive diplomatic discussions. “It is imperative that the transfer occur quickly and smoothly,” the government said, adding that any legal maneuver that would prohibit or delay the transfer would undermine the United States’ credibility with an “important foreign partner.”