WASHINGTON — Trump administration officials are divided over how to handle a US citizen that the military has held in Iraq for more than three weeks as a suspected Islamic State fighter, according to an official familiar with internal deliberations.
The detention is raising a dilemma that could resurrect some of the biggest wartime policy questions of the post- 9/11 era.
Providing the first details about a predicament that the Trump administration has kept draped in near-total secrecy, the official said the problem facing Pentagon and Justice Department officials is how to ensure that the man will stay imprisoned.
The prisoner surrendered Sept. 12 to a Syrian rebel militia, which turned him over to the US military.
It may not be possible to prosecute the man because most of the evidence against him is probably inadmissible, the official said.
But holding a citizen in long-term wartime detention as an enemy combatant — something the military has not done since the George W. Bush administration — would rekindle major legal problems left dormant since Bush left office and could put at risk the legal underpinnings for the fight against the Islamic State.
Admissible evidence is sparse, said the official, who spoke on the condition of anonymity to discuss sensitive information without authorization, adding that the FBI and Justice Department were working to build the case.
Spokesmen for the National Security Council, the Justice Department and the Pentagon declined to comment on the specifics of this account but did not contest its details.
But the pressure to make a decision is mounting. On Thursday, the American Civil Liberties Union filed a habeas corpus petition asking a judge to order the Pentagon to let its lawyers visit the prisoner and to rule that the government’s holding of him in detention without due process and unable to communicate is unconstitutional.
“The US government cannot imprison American citizens without charge or access to a judge,” said Jonathan Hafetz, an ACLU lawyer. “It also cannot keep secret the most basic facts about their detention, including who they are, where they are being held and on what authority they are being detained.
The Trump administration should not resurrect the failed and unlawful policy of ‘enemy combatant’ detentions.”
But it is unclear whether the group has standing to bring that complaint without the man agreeing to let it represent him. Because Trump administration officials have refused to disclose his name, rights groups have been unable to track down any close relative to grant that assent on his behalf.
The Trump administration has said almost nothing about the detainee beyond acknowledging that he exists and was recently visited by the International Committee of the Red Cross.