Texan should be put on trial in America for supporting ISIS in Syria
The recent capture of two American citizens, one from Houston, among Islamic State forces fighting in Syria is a stark reminder of the global nature of the conflict there and the recruiting powers of ISIS and other terrorist organizations.
But it’s also an opportunity to set a precedent that recognizes the right to due process for any American citizen apprehended in a foreign land and accused of taking up arms against the U.S. or, as in this case, a U.S.-backed militia.
In 2004, the Supreme Court ruled in Hamdi v. Rumsfeld that the U.S. government can designate a U.S. citizen or a foreign national as an “enemy combatant” and hold that individual as long as there are “ongoing hostilities” — a nebulous concept in a seemingly endless war on terror.
But in Hamdi the high court also ruled that any U.S. citizen designated an enemy combatant has both the right to due process challenging that designation and the right to petition for a writ of habeas corpus. As Justice Sandra Day O’Connor made clear in the court’s opinion, “(A) state of war is not a blank check for the President when it comes to the rights of the nation’s citizens.”
Moreover, as most legal experts agree, the only place for U.S. citizens to be tried for alleged crimes against the U.S. — whether those crimes be acts in support of terrorism or treason — is in a U.S. federal court. That is especially true in war-torn Syrian territories or other areas where there is no functioning judicial system or impartial court to grant a writ of habeas corpus or provide due process.
The Texan recently captured in Syria is Warren Christopher Clark, a 34-year-old University of Houston graduate identified in a 2018 report by George Washington University’s Project on Extremism as an American attempting to join the Islamic State. Captured by Syrian Democratic Forces, a U.S.-backed militia comprised mainly of Kurdish fighters, Clark is a U.S. citizen and should be repatriated as soon as possible and granted the rights guaran- teed all U.S. citizens under the Constitution, including due process and habeas corpus.
As Jonathan Hafetz, an attorney with the ACLU’s Center for Democracy, recently told us: “If the government has evidence that he committed a crime, and it wishes to incapacitate him, it should then transfer him to the U.S. and charge him in a federal court. That’s the tried and true method of dealing with suspected terrorists who violate the law. What it absolutely should not do is seek to have him rendered to another country illegally or to hold him in a lawless status.”
As David Rivkin, a Washington-based attorney, conservative commentator, and expert on constitutional and international law, explains, the U.S. detention facility in Guantanamo Bay, Cuba, was never intended for U.S. citizens. “From day one, the first (post 9/11) Bush executive order indicated that U.S. citizens would not be tried by military commissions. So, nothing Guantanamo related is relevant to those two U.S. citizens” recently apprehended in Syria.
Both Rivkin and Hafetz agree that all American citizens apprehended overseas for supporting acts of terrorism or treason should be repatriated to the U.S. and tried in federal court. Indeed, as Rivkin explained, that’s the ideal solution for any alleged foreign terrorist or enemy combatant apprehended in Syria or elsewhere — to be repatriated to their home country and tried in a legitimate court of law.
“The Kurds clearly want them repatriated for obvious reasons,” says Rivkin. “They do not have the capability to try them with any semblance of due process. And since there’s really no choice of trying them in situ (on site), they have to be tried by the judicial systems of whatever countries they’re citizens of.”
The dilemma is what to do with alleged enemy combatants from countries that will not allow them to be repatriated, or where they will receive no due process and may be subject to torture, summary execution, or other human-rights abuses?
Is Gitmo an option? President Obama vowed to close Gitmo, where now only 40 detainees charged under the U.S. military commission-system remain; while President Trump has pledged to keep it open and “load it up with a lot of bad dudes.” But the fact remains that not a single detainee has been sent to Gitmo since 2008, and the U.S. is highly unlikely to use military tribunals in future cases involving irregular combatants.
The more realistic solution is for the U.S. to set a precedent by swiftly repatriating American citizens accused of being enemy combatants and trying them in federal court or releasing them, if the court finds no just cause to hold them. The U.S. should then use every means at its disposal to pressure other countries to follow suit, repatriating their own citizens to stand trial in a fair and impartial setting.
If that is deemed impossible, we agree with Hafetz and other human-rights activists that alleged enemy combatants should be repatriated to a “safe, third country, consis- tent with human-rights guarantees, such as those prohibiting torture and other ill-treatment.” If there is evidence of criminal activity or treason, the detainee could then be prosecuted in a court of law, or released if there is no evidence.
This may sound like a great deal of trouble to go to for individuals held captive thousands of miles away and accused of being enemy combatants. But we believe the rights of due process and habeas corpus are essential values and precisely the type of rights that terrorists seek to undermine.
Creating a system that extends the rule of law by applying these values, except in times of war clearly delineated by congressional war powers, is part of the struggle necessary to win this conflict. The ongoing war on terror may require tough measures at times, but the first step in preserving our values is to live by them.