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 vs. 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.
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 composed mainly of Kurdish fighters, Clark is a U.S. citizen and should be repatriated as soon as possible and granted the rights guaranteed 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.”
And 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.
FROM AN EDITORIAL IN THE DALLAS MORNING NEWS