ANTHONY 0 . ROMERO

EXECUTIVE DIRECTOR

ACLU
AMERICAN CIVIL LIBERTIES UNION

September 29, 2017
Hon. General James N. Mattis
Secretary of Defense
United States Department of Defense
1000 Defense Pentagon
Washington, DC 20301-1000
AMERICAN CIVIL
LIBERT IES UNION

NATIONAL OFFICE
11' BROAD ':>TREET . I TH FL
NEW YORK , NY l lJll.11, 1-. 1111
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WWW AC LU ORG
OFFICERS AND DIRECTORS

Hon. Jefferson B. Sessions III
Attorney General
United States Department of Justice
950 Pennsylvania Avenue NW
Washington, DC 20530-2001

':>U~AN N HERMA N
PRES/OEN T

AN f HONY D ROMERO
EXE Ji".'E[ ' RE TOR
ROBERT 8 REMAR
TREA S URER

Dear General Mattis and Attorney General Sessions:
On behalf of the American Civil Liberties Union and its more than 1.6 million
members, I write to express deep concern about the detention by the Department
of Defense of an American citizen as an "enemy combatant," and to urge
immediate action to ensure that the United States' conduct with respect to this
citizen complies with the Constitution, and domestic and international law. The
Defense Department has reportedly been detaining the U.S. citizen, who is
suspected of fighting with ISIS, since on or around September 14, after Syrian
forces transferred him to U.S. custody, and the U.S. has transferred him to a
facility in Iraq. The U.S. government has not publicly disclosed the citizen's
identity, nor has it apparently yet determined whether it will continue to detain the
citizen in U.S. military custody, transfer him to another country' s jurisdiction, or
transfer him to the federal criminal justice system for prosecution.
If the reports about the U.S. citizen are accurate, his ongoing military detention is
unlawful as a matter of domestic law, and his constitutional rights to habeas
corpus and to a lawyer must be respected. If the government has legitimate
grounds to suspect the citizen fought with ISIS, he should immediately be
transferred to the federal criminal justice system for criminal charges. On no
account should the Defense Department resurrect the past policy of "enemy
combatant" detention of U.S. citizens, which proved to be a legal and moral
failure.

As a threshold matter, the United States does not have the legal authority under its
own laws to hold alleged ISIS fighters in military detention. That is because the
2001 Authorization for Use of Military Force (AUMF) and the National Defense
Authorization Act of 2012, on which the U.S. military has relied to detain

 terrorism suspects, by their own terms at most authorize the military to capture
and detain persons who were part of or who substantially supported al-Qaida, the
Taliban, or associated forces engaged in hostilities against U.S. or allied forces. 1
The AUMF, which Congress passed days after and in direct response to the
September 11, 2001 attacks, cannot be stretched to cover individuals allegedly
fighting for ISIS, a group that did not exist at the time and that has publicly
opposed al-Qaida. Therefore, military detention of the U.S. citizen, whether in
the United States, at the U.S. Naval Base at Guantanamo, or anywhere else in the
world, is unlawful. Nor may the U.S. citizen continue to be detained for the
purposes of interrogation. 2

AM ER ICAN CIVIL
LI BE RTIES UNION

Relatedly, the detained individual has a statutory and constitutional right to
habeas corpus, the right to counsel, and must be able to challenge the lawfulness
of his detention:' To that end, as discussed below, my staff is available to assist
the citizen in securing access to counsel, and I urge you to provide us with access
to him.
As you no doubt are aware, indefinite military detention without charge has
proven to be unlawful and illegitimate, resulting in prolonged (and ongoing) legal
battles, human suffering, and the erosion of the United States' moral standing in
the world. The detention of alleged "enemy combatants" at Guantanamo, for
example, has violated human rights guarantees, resulted in widespread
international condemnation, and created a still-existing category of "forever"
prisoners that is an affront to fundamental constitutional and international law
norms.

If the U.S. citizen is indeed alleged to have fought with ISIS, the only lawful and
legitimate option is to transfer him immediately to the federal criminal justice
system for prosecution. The prosecution of terrorism suspects by federal courts is
superior to any military option in every respect. Federal courts have
convicted more than 620 individuals on terrorism-related charges since the
tragedy of September 11 , 2001, in proceedings governed by the guarantees of the
U.S. Constitution-to which all criminal defendants are, of course, entitled.
Prosecution in the Guantanamo military commissions is not an option because the
Military Commissions Act authorizes such prosecutions only for non-citizens. 4
Even if the commissions system were an option, it would not be a legitimate one.
The military commissions remain stymied by legal controversy that stems from
their underlying illegitimacy. Commission prosecutions have resulted in the
conviction of eight individuals, and four of those convictions have been
1

Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001); National
Defense Authorization Act for Fiscal Year 2012, Pub. L. No. 1 12-81 , § 1021 (b )(2), I25 Stat.
1298, I 562 (20 I 1) (codifying authority granted under the AUMF).
2
Hamdi v. Rums.feld, 542 U.S. 507, 52 I (2004).
3
Id. at 533 , 535-37, 539.
4
Military Commissions Act of2006, Pub. L. No. 109-366, 120 Stat. 2600 (2006); Military
Commissions Act of2009, Pub. L. No. 111-84, I 23 Stat. 2 I 90 (2009) (provision codified at I 0
U.S.C. §§ 948a, 948c).

 overturned on appeal in whole or in part. In short, continued U.S. military
detention is unlawful and military prosecution would be illegitimate and fraught
with legal challenges.

AMERICAN CIV I L
LI BERTIES UNION

Finally, I remind you that domestic and international law impose certain clear
requirements with respect to the U.S. citizen's treatment, regardless of his
location or custodian. First, secret incommunicado detention is prohibited under
U.S. and international law. 5 The U.S. government must accordingly release the
individual's name and the place of his location immediately. Second, torture and
other cruel, inhuman and degrading treatment are prohibited under U.S. and
international law,6 and federal law expressly limits interrogation techniques to
those specified in the U.S. Army Field Manual. 7 Third, we understand the
International Committee of the Red Cross has been notified of the detention of the
U.S. citizen in U.S. custody, but it must also be provided with prompt access to
him. 8 Fourth, the United States may not transfer the citizen to another country for
detention or prosecution if there is a likelihood that he will face abuse or an unfair
trial. 9 Failure to adhere to these requirements not only would violate the United
States' legal obligations, but also would further undermine its values and
reputation in the world.
The course you take with respect to the U.S. citizen in Defense Department
custody is a critical test for this administration's adherence to the rule oflaw. I
accordingly urge you transfer him to the United States and the federal criminal
justice system without any further delay. Because the U.S. citizen has a right to

5

Exec. Order No. 13,491, Ensuring Lawful Interrogations, § 4, 74 Fed. Reg. 4893, 4894 (Jan. 27,
2009); Restatement (Third) of the Foreign Relations Law ofthe Un ited States§ 702(c) (1987).
6
Exec.OrderNo.13,491§3(a);DetaineeTreatmentActof2005 , Pub.L.109- 148, § 1003, 119
Stat. 2739 (2005); Geneva Convention for the Amelioration of the Conditi on of the Wounded and
Sick in Armed Forces in the Field, art. 3, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 3 1 (entered
into force Oct. 21, 1950); Geneva Convention for the Ame lioration of the Condition of Wounded,
Sick and Shipwrecked Members of Armed Forced at Sea, art. 3, Aug. 12, 1949, 6 U.S.T. 32 17, 75
U.N.T.S. 85 (entered into force Oct. 21, 1950); Geneva Convention Relative to the Treatment of
Prisoners of War, art. 3, Aug. 12, 1949, 6 U.S.T. 33 16, 75 U.N.T.S. 135 (entered into force Oct.
2 1, 1950); Geneva Convention Relative to the Protection of Civilian Persons in Time of War, art.
3, Aug. 12, 1949, 6 U.S.T. 35 16, 75 U.N.T.S. 287 (entered into force Oct. 21, 1950); Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984,
1465 U .N .T.S. 85 (entered into force June 26, 1987) (" Convention Against Torture").
7
National Defense Authorization Act for Fiscal Year 20 16, Pub. L. No. 114-92, § 1045(a), 129
Stat. 726, 977- 78(2015) (2016 NOAA); Exec. Order No. 13,491 § 3(b).
8
Exec. Order No. 13,491 § 4(b); Dep't of Defense, DoD Directive 2310.0 l E, DoD Detainee
Program (Aug. 19, 2014), available at
www.jag.navy.mil/distrib/ instructions/DoDD2310.01 E_ Detainee_Program.pdf; 20 16 NOAA §
1045(b) (requiring notification and prompt access); Stephan ie Nebehay, U.S. more open on
detainees in Iraq, Afghanistan: ICRC, Reuters, Jan. 11, 2011 , http://www.reuters.com/article/usiraq-detention-cross/ u-s-more-open-on-detainees-in-iraq-afghanistan-icrcidUSTRE70R2Kl20110128.
9
See, e.g., Convention Against Torture, art. 3; Foreign Affairs Reform and Restructuring Act of
1998, Pub. L. No. 105-277, div. G, § 2242(a), 11 2 Stat. 268 1-761, 268 1-822; Munafv. Geren, 553
U.S. 674, 706 (2008) (Souter, J., concurring).

 counsel, my staff is available to help inform him of his rights and assist him in
securing legal assistance. I look forward to hearing from you.
Sincerely

Ant ony D. Romero
Executive Director
cc:

AMERICAN CIVIL
LIBERTIES UNION

Hon. Rex Tillerson, Secretary of State
Franc;ois Stamm, Head, ICRC Regional Delegation for the United States and
Canada