Federal Judge Questions Enemy Combatant Detentions (Correct)

asked for. A DC federal judge said the government was trying to do an end raun around the right to habeas corpus, a basic constitutional right to challenge detention. The unidentified American has been held by the US military in a rock since he was captured in Syria in September after allegedly fighting on behalf of isis joining me is

William Banks, a professor at Syracuse University Law School. Bill set the stage for this week's hearing by telling us how Judge Tanya Chutkin has had to use court or is to get basic information from the government. It really is quite an extraordinary situation. Uh. This this man, we're calling him John Doe because we do not know his

identity has been held by the governments. In September, he either surrendered or was apprehended by the Syrian Democratic forces and then handed over to the United States and taken to Iraq, where he has been ever since. The government has not let us know his name, the circumstances of his capture or or turning himself in, or his current status, except to say that he's being held. Uh. It's it's certainly possible that the government has the legal right to

detain this man. The Supreme Court held in the two thousand four decision called Hamdi versus runs But that the government may have a right to detain even a citizen combatant to his fighting for an enemy in an armed conflict against the United States. In that case, the citizen is not different than any other enemy if he's bringing

arms against the United States. What's so extraordinary here is that the government has not afforded this young man an opportunity to contest the circumstances of his detention, that is, to have his day in court. The a c o U has filed a habeas corpus petition on behalf of this unidentified American. What were the Justice Department's arguments against that petition. The arguments really weren't legal arguments at all.

They simply argued that that it wasn't time yet, that they were still trying to determine what to do with them. There of course various possibilities here, but the possibilities are are stretching credibility now that it's been more than twelve weeks since he's been detained. One is that they were trying to amass evidence with which they could charge him

in a regular civilian or in the United States. As as many of your listeners know, the United States routine brings captured alleged terrorists to the United States to stand trial, and that system works quite well. The second possibility is that they are trying to arrange for transfer of him to a third country somewhere that might take him. With this, with this man's consent, even though he is the United States citizen, that could be taking a lengthier period of time.

And the third possibility is less favorable for the government, which is that they simply don't know what to do with this guy, whether to prosecute him, let him go, which has yet another possibility, or transferring somewhere. So the government admits that the detainee asked for a lawyer before

he would go forward with questioning. At that point, wasn't the government required to provide him with a lawyer, which they don't want to give him through the a c l U. Apparently, well, that's the standard interpretation that most of us would have full or what we call the Miranda rights. When you rehim his rights and law enforcement interrogation, he told you have a right to an attorney, but that right actually doesn't detach until the government moves to

bring a case against you. So he's in a limbo. Now he's being held. He's not being prosecuted, he's simply being held. So following the miranda principle, he doesn't have that right to the attorney until the government takes the next step. And it's it's art of circular because they say, we're not ready to take the next step yet. Now let's discuss what is settled law and what is not.

You mentioned the Supreme Court's ruling in hom D v. Rumsfeld that the government can detain US citizens as enemy combatants, but they have the right to challenge their detention before a neutral arbiter. What are the questions that are still open? How long is too long? And who decides right? Well, Judge Chutkin in the District Court in Washington will make

that decision preliminary early, you know. We we hope and expect that she could be making that any day now, ordering the government to provide him a council who could then bring his habeas corpus case in a federal court in the United States. As I said a moment ago. Once once that case is brought, the government may well win it. But the important principle, of course, is to reinforce his right to have his day in court. He

had things that are not settled yet. As of course what he was doing, what he did that would would justify his detention. Uh. Sometimes somebody captured is or turned himself in is not necessarily culpable as as a member of an art force of fighting against the United States. They are facts to be heard here. Bill. Is this the same issue that came up under the George W.

Bush administration or is it different? Well, it's it is the same in the sense that we're in the Homby case at someone who was allegedly her originally rather thought to be an alien fighting for the Taliban who was sent to Guantanamo Bay, and after some period of time it was discovered that Hammy had actually was born in the United States, so he was transferred to a military

break in South Carolina rather than held at Guantanamo. Guantanamo was reserved for non citizen aliens who were unlawful combatants picked up in the soapballed war and tear. So it's it's it's a little bit alike, but somewhat different because this this individual, of course, was presented to the United States UH in a combat zone and being held still in what you could call a combat zone by the

US officials. Judge Chukins said, what the government suggests is an end run around the right to habeas He wants counsel, which is an assertion and request that I don't think I can't ignore. Is she signaling pretty clearly how she's going to rule. I think she is, and she's I think been remarkably patient with the government here, trying to give it time to make more UH coherent arguments that

would justify the continuing refusal to provide him counsel. I think we're going to find an order to provide him counsel and then ah habeas petition forthwith. The Supreme Court has turned down a chance to decide whether the federal law protecting workers against discrimination based on sex also protects workers from discrimination based on sexual orientation. The circuit courts are divided on the question of whether Title seven covers gay workers, and so are the E O, C and

the Justice Department. The Justices did not explain their reasoning for turning down the case of a hospital security guard in Georgia who said she was discriminated against because she was gay. Joining me is Anthony Christ, professor at the Chicago Kent College of Law. Anthony the circuits are split. The seven Circuit rules sexual orientation discrimination is a form of gender bias protected by Title seven. The eleven Circuit ruled it's not, and the second Circuit is considering it now.

Isn't this the type of confusion that the Supreme Court is supposed to clear up? Yeah? Absolutely. I think that the Court and not hearing this case is only delayed the timing of when they will actually decide a case of this sort um. This case wasn't a particularly great vehicle to decide this this issue. I mean, it's a it's a big issue, UM. And so certainly the court would want a clean case. UM. There are some procedural

problems with the defendants claiming they weren't properly served. UM. And in fact, Jimmy Evans has a potential remedy as a as a traditional gender nonconformity claim that's removed from her such orientation claim. So I think that there are a lot of factors here that my have not made this best case for the court to take up to decide this this incredibly important issue. Tell us what the

argument is on both sides. So the argument in favor of expanding our understanding of what sex discrimination is that effectively, if if you take into consideration a person sexual orientation, you're taking into account that person sex and the sex of the people that they form intimate relationships with. And so if you're taking sex into account at all, that's a plain form of sex discrimination that Title seven UH

was enacted to to to remove from the workplace. UM. The The counter response is, well, homophobia is a different and distinct form of bias, that's not UH sexism, and so these are distinct things. UM. And that Congress when they enacted Title seven's protections in the N four. Um, we're really thinking about protecting men versus women in the workplace. Um, you know, based on biological sex, and they weren't thinking about sex orientation or LGBT people, and so these things

are distinct issues. Um. And if the Court or if if Congress wants to a me entitle seven to include LGBT discrimination claims, and they're free to do so, Anthony, is it important to gay rights groups to get this issue before the Court before Justice Anthony Kennedy retires and that could be this term? Yeah, I think the timing here is is incredibly important. Um. I think gay rights groups certainly would like this, this case, a type of case like this to come before the Court for Justice

Kennedy retires. If he does, Um, it certainly would be a lot easier of a road, uh, for for advocates in that sense. Um, you know, if Justice Kennedy is on the Court as opposed to someone who President nominate

to replace him in within the next few months. So how did how does it affect rights in the workplace that in the same court case, the Second Circuit case in New York which I was talking about before, the Equal Employment Opportunity Commission was arguing that Title seven protects against discrimination based on sexual orientation, while the Justice Department was arguing that it doesn't. Yeah, it's a very unusual situation where you have two different entities within the federal

government taking opposite views. UM. The e of C, of course the agency that Congress charged with the responsibility of UM enforcing Title seven, and so they get a considerable amount of of UM of deference in the sense that you know that that they're the experts in this field. UM. But the Department of Justice certainly has you know, they've claimed that, as the nation's largest employer of the federal government, has a has an important interest in Title seven and

the administration of Title seven. UM. And you know, it's it's not surprising that the political appointees that were put in place by the Trump administration UM in the Department of Justice took this position, UM, given you know, Attorney General Sessions and a number of high profile people in the Trump administration have generally been uneasy with pro LGBT policies and and pro or policies that protect LGBT employees

and workers. Anthony. Some states do have laws that protect against workplace discrimination, so is titled seven less important in those states. Uh. It depends on a state by state basis. UM. There are a number of states where uh, you know, you certainly have coequal protections, but there are many states,

many many states in the fact that they do not. UM. And it's important to have I think it's important to have access to UM, you know, to to have access to robust protections and have protections for people UM on a federal level, because it's important that we have uniform laws. The patch work laws where LGBT people were protecting certain situations and not in other states. UM, it's a fundamentally

unworkable UM. And I think we need a national resolution to this for for every LGBT employee to know that they uh, you know, they're free from that, that they're protected from workplace bias and workplace discrimination no matter what state they live and work in. Just briefly, might this second circuit case be the one that the court takes. Yeah, I think this is an ideal vehicle for it. The real question at the end of the day, does the employer want to be the face of defending this at

the Supreme Court? UM? They may not necessarily appeal, but that time will tell if that happens. Always a pleasure to have you on that. Professor Anthony Christ of the Chicago Kent College of Law, thanks for listening to the Bloomberg Law Podcast. You can subscribe and listen to the show on Apple Podcasts, SoundCloud, and on bloomberg dot com slash podcast. I'm June Brasso. This is Bloomberg, the Duck, the dependent and duck of the