The American flag flies next to a statue of the scales of justice at United States Court House, February 6, 2002.

© 2002 Reuters

(Washington, DC, November 13, 2017) – The US government has been holding a US citizen suspected of fighting with the Islamic State (also known as ISIS) for two months in an undisclosed military prison in Iraq without access to legal counsel, Human Rights Watch said today. US authorities should immediately ensure that the prisoner has access to a lawyer and should appropriately prosecute him in a US federal court.

The prisoner, a man identified by the US Defense Department only as “John Doe,” surrendered to US-allied forces in Syria around September 12, 2017, media reports said. The prisoner reportedly has requested a lawyer at least twice, including after he was informed of his US constitutional rights, and refused to answer interrogators’ questions. The Defense Department has rejected the requests of the American Civil Liberties Union (ACLU), a prominent US civil rights group, to contact him to offer to represent him or help him find a lawyer.

“Holding a detainee for two months in Iraq without access to counsel violates minimum international detention standards and is ultimately counterproductive,” said Letta Tayler, senior terrorism and counterterrorism researcher at Human Rights Watch. “Depriving a criminal suspect of counsel and other fundamental rights could complicate his prosecution and deter other alleged fighters from surrendering.”

The US should ensure legal counsel is available not only to the US prisoner but also to any other alleged fighters, regardless of their nationalities, whom it cannot turn over to Iraqi authorities because of torture concerns, Human Rights Watch said.

A US federal judge is weighing a motion filed on October 5 by the ACLU to require the government to grant it access to the detainee. On October 30, the US filed a counter-motion contending that the ACLU’s desire to ensure that the prisoner had a lawyer was “premature” and not “easy” to arrange, given the suspect’s location in an armed conflict zone. The Defense Department “is still in the process of determining what its final disposition regarding this individual will be – which is not extraordinary given the relatively short time that has passed,” the US counter-motion said.

Under international law, while combatants captured during inter-state armed conflicts are only entitled to counsel if they are charged with war crimes, individuals detained during non-international conflicts such as in Syria and Iraq may be questioned for intelligence purposes but are entitled to counsel promptly. The United Nations Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment provides that “communication of the detained or imprisoned person with the outside world, and in particular his family or counsel, shall not be denied for more than a matter of days.” Detaining authorities not only must inform prisoners of their right to a lawyer, they also must provide the prisoners with “reasonable” means of accessing legal counsel.

Additionally, the US Supreme Court ruled in 2004 in Hamdi v. Rumsfeld that US citizens captured on the battlefield must have access to due process, including the ability to challenge their detention before a neutral arbitrator.

In the case suspect detained in Iraq, the US government contended that one reason the prisoner does not need the ACLU’s assistance is that the International Committee of the Red Cross, a Geneva-based humanitarian organization, had visited the detainee twice. While visits by the International Committee of the Red Cross are critically important to ensure that detention conditions meet international standards, the group does not provide legal aid, Human Rights Watch said.

The US government should promptly transfer the prisoner to civilian US authorities if it intends to charge him with federal crimes, Human Rights Watch said. Otherwise, he should be safely sent to a third country for appropriate prosecution or be released.

The man is the first US citizen known to have been captured abroad and designated by the US as a suspected “enemy combatant” since President Donald Trump took office in January. During his election campaign, Trump said he would send “bad dudes” such as fighters from extremist armed groups to the US military prison at Guantanamo Bay, Cuba. The prison, which currently holds 41 detainees, has not received a new detainee since 2008.

The military commissions created to try detainees at Guantanamo do not meet international fair trial standards and have been plagued by procedural and ethical problems. The commissions have convicted only eight people since 2002. Three of these convictions have been fully overturned by appeals and another three partially. Only seven detainees currently face charges. In contrast, during that same period federal courts have convicted more than 600 people in terrorism-related cases.

If the US government intends to charge the man it is holding in Iraq with federal crimes, it should promptly transfer him to civilian US authorities, Human Rights Watch said. While the detainee might also be subject to prosecution by another government, the United National Convention against Torture, which the US has ratified, prohibits transferring anyone to authorities if the suspect  would face torture or other ill-treatment. Although he is being held in Iraq, the detainee should not be turned over to Iraqi authorities; Human rights Watch has documented a pattern of torture of captured extremist suspects in Iraq, as well as sham trials followed by executions.

While in US military custody, the prisoner should receive basic due process, including the right to contest his detention before an impartial adjudicator, to have access to counsel, and to have his case periodically reviewed. If the US does not prosecute the detainee or send him to a safe third country for appropriate prosecution, he should be released.

“The US government’s excuses for delaying this criminal suspect’s access to counsel simply don’t hold water,” Tayler said. “Access to a lawyer is not a matter of convenience, it’s a fundamental right.”