Is the American ISIS Captive Being Told All His Rights? Why Not?

This article first appeared on Just Security.

On Thursday morning, in the ACLU Foundation v. Mattis case, Judge Tanya Chutkan ordered the government to inform the court by 5:00 p.m. whether the unnamed U.S. citizen detainee in DOD custody in Iraq has been informed of his right to a lawyer, and whether he asked to consult with a lawyer.

The Justice Department just responded by explaining that when he was being questioned by the FBI for law enforcement purposes (apparently several weeks ago), the citizen was read his Miranda rights, and then he asked to see a lawyer ("he felt he should have an attorney present" for questioning).

The FBI then informed him 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."

At which point, the FBI's law enforcement questioning ceased. ("No further questioning of the individual for law enforcement purposes has taken place.")

That's all fine and good. The government is correct that although the Miranda warnings famously promise that " You have the right to an attorney" and " If you cannot afford an attorney, one will be provided for you," that's not literally true: Your right, for Miranda purposes, is only (at most) to have law enforcement officials cease questioning after you have asked for an attorney.

In the criminal justice system, the right to actually consult with an attorney attaches later, more or less when the government initiates the criminal process, such as presentment.

In this case, however, John Doe's right to an attorney is not for purposes of defense to a criminal prosecution–that's not happening (at least not as of now). The issue, instead, is his ability–his right–to file a petition for a writ of habeas corpus, challenging the lawfulness of his military detention.

I don't believe the government disagrees that once he has the right to file such a petition, he also has the right to meet with a lawyer to discuss his habeas rights.

The relevant question, then, is whether he has been informed that he has the right to file a habeas petition, with the assistance of counsel . And the answer to that appears to be: No.

DOJ writes that "Respondent"–that would be the Secretary of Defense–"is not currently aware of any additional information regarding the individual's wishes in connection with his invocation of constitutional rights or pursuit of remedies in U.S. courts."

As I read it, this means: We have not told him he has a right to petition for habeas (with the aid of counsel).

Why hasn't the Department of Defense advised him of his right to petition for habeas? Probably because DOJ and DOD are of the view that no such right to petition has yet attached. Here's the key passage from their reply brief in the present lawsuit:

The Supreme Court has made clear that the "[t]he Executive is entitled to a reasonable period of time to determine a detainee's status" before a habeas petition is appropriate. See Boumediene, 553 U.S. at 795.

As explained, although the Government intends to make a final determination regarding the detainee's disposition in an expeditious manner, it has not yet made that determination.

This is something of a non-sequitur. Yes, the Court held in Boumediene –as to a non -U.S. citizen at GTMO–that the right to petition for habeas relief does not kick in until the government has had a "reasonable period of time to determine a detainee's status"– that is, to determine whether he is, or is not, in fact a member of enemy forces who the military can hold in custody during hostilities with that enemy.

The Pentagon in this case, however, has already made that determination. It is detaining Doe, and has concluded that it has the authority to do so under one or more AUMFs–the very question that he would challenge if he were to decide to petition for habeas.

The fact that the government has not made a "final determination regarding the detainee's disposition –in other words, whether it will detain him militarily, or prosecute him, or transfer him to another nation, or release him–does not bear on the question of whether he has a right to petition for habeas.

Also relevant in this respect is Justice O'Connor's controlling opinion in Hamdi , where she explained that a U.S. citizen 's right to challenge his military detention in court does not attach when he is first captured on the "battlefield," but instead "only when the determination is made to continue to hold [him]."

I think it is fairly apparent that Justice O'Connor could not have meant this statement to mean "when the determination is made to continue to hold him as opposed to prosecuting him or transferring him to another country (however long that might take) ."

Such a reading would give the military a virtually unbounded authority to hold a detainee in custody without habeas challenge, months or years after it determined he was eligible for such detention, merely because the government was continuing to contemplate a possible alternative disposition.

The much more logical reading of her statement, I think, is that the citizen's right to challenge his military detention attaches when the determination is made to continue to hold him, rather than to release him from custody .

If I'm right about that–if Doe's right to file a habeas petition challenging the legality of his military detention attached some weeks ago, when DOD confirmed that it was authorized to hold him in custody under an AUMF–then his right to consult with prospective habeas (not defense) counsel attached then, too.

The question then becomes whether there is any justification for the government not to inform such a U.S. citizen of his right to petition, when that citizen, reportedly raised overseas, appears to be unaware of that legal right.

I'm not 100 percent certain what the answer to that question is; but I do think it's the question Judge Chutkan ought to be asking.

[UPDATE: On Thursday the ACLU asked Judge Chutkan to order the government to tell the detainee of his right to file a habeas petition and to ask him whether he wants the assistance of counsel for habeas purposes.]

Marty Lederman is a Professor at the Georgetown University Law Center.