Late Saturday night, Judge Tanya S. Chutkan ruled that the Department of Defense must allow the ACLU Foundation “immediate and unmonitored access” to the U.S. citizen whom DoD is detaining in Iraq, “for the sole purpose of determining whether the detainee wishes for the ACLUF to continue this [habeas] action on his behalf.”  She also prohibited the government from transferring the citizen detainee to another nation–presumably Saudi Arabia, his home state–“until the ACLUF informs the court of the detainee’s wishes.”  Judge Chutkan further ruled that if the detainee “does not wish for the ACLUF to continue this action,” she will then entertain the government’s motion to dismiss the habeas petition.

I will leave it to others to discuss the merits of Judge Chutkan’s ruling on the ACLUF’s “next friend” standing, a question about which I have not done any research.  The more important aspect of Judge Chutkan’s ruling occurs almost in passing, on page 11 of her 12-page opinion.  As I discussed here earlier, the government argued that the detainee had no right to consult with any habeas counsel, from the ACLUF or otherwise, for the simple reason that his right to file a habeas petition–a petition to challenge the legality of his detention–had not yet attached.  (There is no serious disagreement between the parties that his right to consult with habeas counsel is triggered by his right to file a habeas petition.)

According to the government, the detainee does not have the right to petition for habeas until the government decides whether to prosecute him, release him, transfer him to another country, or continue to hold him in law-of-war detention.  Judge Chutkan rejects that argument.  She reads Boumediene–properly, in my view–as holding that the habeas right does not attach until the government has been afforded a reasonable amount of time to determine whether the detainee can be held as an enemy combatant.  (As I’ve explained, the governing opinion in Hamdi confirms this understanding, as to a U.S. citizen.)  “Here, the Defense Department, which has had the detainee in custody for over three months, has already made this determination,” explains Judge Chutkan, and thus his right to petition for habeas–and the attendant right to consult with habeas counsel–has attached.

I still expect–as I have all along–that the military will transfer the detainee, probably to Saudi Arabia, before any court opines on a possible habeas petition.  The aspect of Judge Chutkan’s order that is most vulnerable on appeal is her injunction against transferring the detainee until the ACLUF determines whether he wishes to file for habeas.  I’m not sure what the basis might be for that particular restriction.  Indeed, if memory serves, the ACLUF has not sought such relief.  It requested the court to order DoD to “provide notice to the Court and to counsel . . . prior to any transfer,” and “to specify, in the case of any transfer of Unnamed U.S. Citizen, the receiving facility, jurisdiction, authority, or country;” as far as I know, however, the ACLUF has not asked for an order prohibiting such transfer.