Hey y'all, check it out.
This Friday I'm going to be at the National Press Club out there in the lobby basically trying to sell my book at the Israel Lobby Conference.
And here's what you do, just go to IRMEP, I-R-M-E-P, that's Grant Smith's group, irmep.org, and you'll find the link, it's the Israel Lobby and American Policy 2018, tickets are still available, it's at the National Press Club all day, March the 2nd.
See you guys there.
Check this out too, on Saturday the 3rd I'm giving a speech to the Pennsylvania Libertarian Party State Convention, and C-SPAN is going to cover it for Book TV, so it's going to be all about the book.
So that's happening on Saturday, and then Sunday I'm back in Washington D.C. and I'm giving two talks, one is at Middle East Books and More, that's the bookstore of the Washington Report on Middle East Affairs, where Mia, they're good guys.
So that's going to be about some things.
And then I'm going to give another talk at the Tenleytown Library, so that's 11 in the morning at Middle East Books and More, and then it's 3 in the afternoon Eastern time there at the Tenleytown Library.
That's this coming Sunday, March the 4th.
Okay, see you guys there, thanks.
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All right, you guys, introducing senior attorney at the ACLU, Jonathan Haifetz.
Welcome back to the show.
How are you doing, Jonathan?
Very well.
Great to be back with you, Scott.
Very happy to have you here.
Very important.
Well, I don't know, the most important thing.
You guys are on it.
There's an American ISIS fighter, allegedly captured by the SDF, that is the Syrian Kurds basically backed by American forces, turned over to the Americans, then they took him from Syria to Iraq where they're holding him.
And I don't even know the guy's name, but I do know that since the last time we spoke, I think, a judge said that you guys do have standing to claim to represent this guy in court.
And that's all I know.
So tell me everything else.
Yeah, so we've, for three and a half months, the government sought to deny this U.S. citizen access to a lawyer.
They were holding him in Iraq, they had not released his name or any details about him.
And they had refused to give him access to the court.
And when we, the ACLU, filed a petition on his behalf seeking to ensure access to a court and the right of legal representation that he had as an American citizen, the government opposed that vigorously.
And we won a ruling in December from the court saying that as an American citizen, he had a right to go to court to challenge detention, he had basic constitutional rights, fundamental constitutional rights.
And so the judge ordered that we be given access to him, unmonitored immediate access to determine if he wanted to challenge his detention or, as the government speculated, just simply languish in prison without any kind of judicial intervention.
And we met with him via videoconference in early January and confirmed that he indeed wanted to challenge his detention and wanted the ACLU to represent him in his challenge.
And so since January, we've been fighting to ensure his most basic right under the Constitution as a citizen, the right not to be detained indefinitely without charge, which is what's happened to him for the last five plus months.
Right.
And now this goes to the heart of what I meant about the most important thing.
It's probably hard for a lot of people to be bothered about what might happen to an American trader who goes and signs up with ISIS.
But the whole thing is, if the Fifth and Sixth Amendment don't apply to him, they don't apply to you and me.
And that's the whole deal.
We either have our Bill of Rights or we don't.
He's a U.S. person.
By all means, charge him with treason and prosecute him.
Charge him with whatever, aid and comfort to however you want to do it.
That's what federal laws are for, right?
That's exactly right.
And the government has not done that.
And we believe their evidence is inaccurate and mischaracterizes the facts.
But in any event, the point is, as you said, if the government has evidence about him, like any other American citizen, it needs to put forward a formal criminal charge and needs to be given the full protections of a criminal trial and not to be detained in some made-up term called enemy combatant as a way of depriving citizens of their basic rights.
And now, so were they, this was really a thing by the Trump administration where they were kind of stretching and practicing, trying out their version of the Bush and Obama enemy combatant doctrine and seeing if they could apply it to an American in this case, or it was just a matter of circumstance or how do you characterize that, you think?
Well, I think they, I think that they, the, what they've said, the government has said is they did not affirmatively seek out a, you know, an opportunity to try to hold an American citizen as an enemy combatant, that sort of a situation happened.
That said, they did, you know, they did defend the policy and they did call him an enemy combatant.
For the first time in, you know, 15 years, you had an American citizen being detained by the U.S. so it could hold him as an enemy combatant.
And I'm sorry, I don't mean to be pedantic here.
I'm just trying to understand.
I believe that it was really just a change of name, but the policy didn't change.
Maybe it's a separate thing, but Obama had used the phrase an unprivileged enemy belligerent.
So I wonder, is the Trump team going back to George Bush's phrase or they're actually using this belligerent term instead or what's that about?
Yeah.
So they, they, it's an interesting point and they are, they are reviving the term enemy combatant.
The Obama administration had not used the term enemy combatant and the Trump administration, you know, did revive it.
They've labeled him an enemy combatant.
So they are reviving that discredited term.
Now that said, the, the, the, the although Obama didn't use the term enemy combatant, he did defend the detention of people, as you said, as under a different name called unprivileged belligerent.
So to me, what's, you know, but to me, I think more, more important in the sense that the name of these two facts first the, and I'll preface it by saying to be fair, Obama did not, you know, he did defend those Bush era policies of indefinite detention of people, whether you call them enemy combatants or unprivileged belligerents.
But the two, the two differences, important differences are, I think, and breaks with the Obama administration are that the Trump administration is, is, was using this term against an American citizen, using this power against an American citizen, which had not been done since even the early years of the Bush administration.
So even the Bush administration by, you know, 2000, 2002, 2003, had stopped using the term enemy combatant, had stopped using, sorry, detaining people, citizens as enemy combatants.
So this was a, this is a radical move to be able to be holding us an American citizen as an enemy combatant.
And then the other, the other fact, I think, which is a break with Obama is Obama did not engage in, he defended these enemy combatant type detentions that had been inherited from the Bush administration.
But there were no new cases where people were detained indefinitely as enemy combatants.
So in a sense, it's, it's, you know, it has kind of a foot in the path, but to some extent, it's a continuation.
But it's also kind of a revival of a, of a policy that had been discredited and hadn't been used for many years.
And now, so back during Bush, there was Al-Mahri, who was not a citizen, but he was a U.S. person arrested in Peoria, Illinois, which is kind of funny, like right in the cliche, you know, Peoria.
And then there was Jose Padilla, who was an American citizen, American born American citizen and arrested on American soil and who was charged as an enemy combatant.
And if I remember right, the Supreme Court said that Bush had to let Al-Mahri go.
But in the case of Padilla, they chickened out when you guys were taking it.
And it was going to the Supreme Court.
The Supreme Court had ducked it on standing the first time.
But the second time, the Bush administration blinked, basically, and went ahead and indicted him, rather than, apparently, they were afraid that the Supreme Court was going to say that, you know, you can't do this.
Yeah, I think it's very important to bring those cases up.
Those were Padilla, the citizen, Al-Mahri, the non-citizen who was lawfully in the United States.
Both cases where you had using enemy, detaining individuals, enemy combatants who were arrested on U.S. soil, a very radical, unprecedented move by the Bush administration.
The only thing, the thing is, in both, the Supreme Court did not reach the merits in either case.
Both cases went to the Supreme Court.
And in both cases, the government abandoned its claim at the 11th hour, that it could not possibly defend before the Supreme Court.
In Padilla's case, the Bush administration abandoned the enemy combatant detention and charged him criminally when the case was pending before the Supreme Court on whether the court would take it.
And in Al-Mahri, the Obama administration abandoned the detention after the Supreme Court had granted review and was poised to hear the case.
So in both cases, the U.S. government claimed this extraordinary power.
And then when the case went to the highest court in the land, they walk away from it because it's not a defensible policy.
But now the accusation here is that this guy was caught on the battlefield fighting with the Islamic State.
So is or is that not different?
Well, I mean, it is different, but it does, in this case, it doesn't affect the illegality of the detention.
The Supreme Court held in, and there was another case of a U.S. citizen held as an enemy combatant named Yasser Hamdi, who was captured allegedly on a battlefield in Afghanistan fighting with the Taliban.
And that case went to the Supreme Court.
And in 2004, the Supreme Court said that if an American citizen is fighting with a nation against which Congress has authorized force, effectively declared war, or a group against which Congress has authorized force, that person can be detained as an enemy combatant as long as he has a fair opportunity to contest the allegations against him.
But what's important for our case, for the case of, in the Dover's-Maddox case, is that the, in Hamdi, it was, Hamdi was alleged to be part of the Taliban, and Congress had authorized the use of force against the Taliban after 9-11.
The petitioner in the Doe case is allegedly a member of ISIS, and Congress has not authorized the use of military force, or, and certainly not authorized the military detention of alleged members of ISIS.
See, so the problem is that there's no legal authority in this case to be detaining someone who is allegedly part of a group, again, that Congress has not authorized the president to exercise detention power over.
And that, so this is a case where there's just, the president has not, the executive branch is not adhering to the basic division of war-making authority in the Constitution, whereby, you know, that Congress has to authorize force and detention authority against a particular group.
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Well, but, not that I'm saying I agree with this, but isn't the administration saying, as of yesterday, that no, the 2001 AUMF does include the Islamic State, because I guess they're arguing, I didn't read the thing, but that, after all, it's just Al-Qaeda in Iraq became the Islamic State of Iraq, or became ISIS, you know?
So isn't that their argument, and doesn't that hurt yours?
Well, that's their argument.
They have two arguments, which I think are inconsistent with each other, and neither is right.
One argument is that ISIS essentially was part of Al-Qaeda, because it emerged from Al-Qaeda in 2003 in Iraq.
The second argument is that ISIS is an associated force of Al-Qaeda, and so it can detain U.S. citizens based on their membership in that associated force.
Neither of those arguments is valid.
The first one is, the AUMF, this is the 2001 statute that Congress passed right after 9-11, specifically targeted Al-Qaeda, specifically targeted the Taliban as the groups responsible for the 9-11 attacks.
And at the time, the Bush administration sought broader preemptive authority to prevent future terrorist attacks by other groups, and Congress refused to give him that authority.
It said, no, we're not going to give you that blank check.
Your authority is going to be limited to these groups, to Al-Qaeda and the Taliban.
And so Congress did not give the president the power to detain American citizens based upon membership in some group that did not exist at the time of 9-11.
And then in terms of the associated force argument, whatever that means, at most it means that a group has to be working closely with one of the targeted groups in the AUMF, Al-Qaeda or the Taliban.
And here, ISIS and Al-Qaeda, they may both be separately fighting the US, but they're not allies.
They're, in fact, opponents.
And so Congress did not authorize, essentially, the use of force against any group that happens to be fighting the United States on the theory that they're associated.
Not every group that might be fighting the United States is associated or an ally.
And so, again, it's stretching this wartime authority beyond what Congress intended.
And this is a fundamental question of our constitutional structure.
Yeah.
Another part of the fundamental problem, though, is you can't get a court to say that the president is out of bounds.
That's Congress's job to rein him back in again.
They will rule.
Right?
They'll say it's a political question and none of their business.
Well, they haven't made that argument and they can't make that argument because this is a habeas corpus case.
And a habeas corpus, there's no political question doctrine does not, is not a defense in a habeas corpus case.
So that's interesting.
So there's a congressman right now, I guess I should, I don't know what all I'm supposed to know about this.
There's a congressman right now who's trying to sue over this, and he's trying to find a good litigator to help represent him in court to try to sue the president over exactly this issue.
But you make this very interesting point.
Here's a habeas case that they can't ignore.
And you're saying they will have to address the question of the AUMF and whether it in fact does authorize war against the Islamic State in order to be able to continue to satisfy the rest of the claims in this case.
Exactly.
It's the fundamental claim.
And think of it this way, under the government's view, if President Trump decided that PETA, the environmental group, was a terrorist organization and was associated with Al Qaeda under this, because they were fighting at the same time, that if it were a political question, the courts wouldn't even be able to address that.
I mean, it's a fundamental question that a fundamental power of the courts to determine if there's legal authority to detain an American citizen.
And so the government has not made the political question argument, and they can't make it because it's not a political question.
If they're detaining a citizen, unless the writ of habeas corpus has been suspended, which it's not been, the courts will decide if there's a legal basis to hold that person.
It's a fundamental duty, and it's a legal question that's proper for courts to decide.
And then, so if you win on this point, though, that even that the court does have standing to decide whether the AUMF applies to ISIS or not, could that then be a big precedent for a congressman to use, for the ACLU to use in representing some congressmen suing the presidency for violating Article 1, Section 8, Clause 11?
Well, I think, I mean, I think the standing is specific to the case because he's being detained.
So I don't know.
But I mean, could you tell a second court, hey, this previous court in this habeas case, they ruled on the AUMF's standing, you know, legitimacy on this question.
So you can too?
I don't know.
Yeah, I mean, it's possible there will be implications.
I will also say, though, that just to be clear, our claim is specifically about the detention of an American citizen.
So we're not, you know, we're not asking the court to find anything more broader than that.
But simply if you're going to detain an American, you know, whatever else, you know, that Congress may or may not have authorized with respect to the Islamic State, it did not authorize the detention of an American citizen, because it's not just the constitutional principles of separation of powers and the Due Process Clause.
There's also a federal statute called the Non-Detention Act, which was enacted in 1970, early 1970s, 1971, that was designed to prevent a recurrence of the internment of Japanese American citizens in World War, during World War II, and to appeal a Cold War statute called the Emergency Detention Act, which gave the president national security powers to detain an American citizen.
And this statute said, if you're going to hold an American citizen, detain an American citizen, Congress has to expressly authorize it.
And there's no express authorization here.
Congress has not authorized President Trump or any other president to lock up an American citizen based on allegations that he's an affiliate.
Wait, wait, wait, I'm sorry.
And I know I'm over time with you, and you got to go, but I'm totally missing the most obvious question here.
What about the NDAA of 2012, that Obama signed that says he could do exactly this?
The NDAA of 2012 is interesting.
It specifically says it does not address the detention of citizens.
It addresses only the detention of non-citizens.
And it also, at most, what the NDAA of 2012 says is, if a non-citizen is part of or associated with Al-Qaeda, they can be detained.
It doesn't address the detention of alleged members of the Islamic State at all.
It's specifically tied to the Taliban and Al-Qaeda.
All the NDAA was doing was just basically saying, Congress is saying, look, we're making clear that when we passed the AUMF of 2001, we were authorizing the president to detain at least non-citizens who were part of or supporting the Taliban and Al-Qaeda.
It did not address the detention of other groups, groups that were not at war with the United States and did not really exist, even at that time.
No one was even thinking about the Islamic State in 2012.
Okay, so it was saying U.S. persons, but not U.S. citizens.
Even U.S. persons, it said, certainly not U.S. citizens.
And some U.S. persons as well, but no U.S. citizens.
It's not affecting, it's not supporting anything.
Because I thought the whole hype about that, I thought the whole problem, and I don't remember the language or anything anymore, but I thought the whole problem there was this was about that they could arrest Americans and turn them over to the military.
Well, that was some suspicion, but that's not what Congress did.
Congress was very clear.
It said, we're not, there's a specific provision in that statute that says nothing in this act affects one way or the other the detention of American citizens or president's power over American citizens.
No, was that something that Rand Paul and Mike Lee had added?
Because I, you know, I'm sorry, I know you got to go and we're off on a sort of side project here, but because Rand Paul and Mike Lee actually had made a big deal about this and how I think they had attempted at least at one point to amend it.
Something like that.
Maybe the next year?
Well, because there was concern in Congress about, Congress was concerned about giving power over American citizens.
So they were saying that nothing, that nothing in the NDAA, nothing in the NDAA affected power over American citizens.
So there's no, so there's no support for the, the position of the Trump administration in the NDAA in 2012.
Anything it shows how the sort of importance and the care with which Congress, you know, needs to legislate if it's going to be authorizing the president to lock up an American citizen without a criminal charge.
Yeah.
All right.
Listen, I want to say one more thing about the Trump administration that's new here as well.
And if you have just one more minute for this, is that what the other point that the Trump administration has revived, a extreme doctrine from the Bush years of unchecked executive power is that the president has inherent authority as commander in chief to detain an American citizen, even if Congress hasn't authorized it.
So in other words, that the government is saying that even if the, as we've argued that the AUMF doesn't apply to, doesn't, doesn't authorize the detention of alleged members of ISIS, the president has inherent authority, independent authority by virtue of his being commander in chief to imprison an alleged enemy indefinitely, even without a statute, which is an incredible, incredibly sweeping assertion of power that no court has ever endorsed.
So there must be new memos that say that, right?
There must be the latest version of the you and Bybee memos that claim this.
Well, they are.
That's what they're relying on.
The, the, the, I mean, it's an interesting question whether there's a new memo or they're just relying on a memo that hasn't been repudiated or, or, or they're just, you know putting it forward.
But this is a, this is a power that this is an incredible power that sort of goes back to that has its origins in the discredited you Bybee theories of, of, of unchecked executive power.
Amazing.
Hey, by the way, does your client have a name or it's still classified or what?
It's still protected under court order at our request now to ensure his privacy and security.
All right.
Well, you're his lawyer now.
So, okay.
Hey, listen, thank you so much for coming back on the show, Jonathan.
Really appreciate it.
Yeah.
Great to talk to you as always, Scott.
All right.
So you guys, that is Jonathan Hayfits.
He is a senior attorney at the American Civil Liberties Union and there you go fighting for your rights.
The declaratory and restrictive clauses in the bill of rights.
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