In this Saturday, Nov. 15, 2014, file picture, birds fly backdropped by a building with the Islamic State group flag on top, in the Syrian city of Jarablous, seen from an archaeologic site outside Karkemish, Turkey.

In this Saturday, Nov. 15, 2014, file picture, birds fly backdropped by a building with the Islamic State group flag on top, in the Syrian city of Jarablous, seen from an archaeologic site outside Karkemish, Turkey. AP Photo/Vadim Ghirda, File

The Secrecy Surrounding the John Doe-ISIS Case Is the Real Threat

An accused terrorist may go free because the Trump administration demanded an end-run around the rule of law.

An American was captured in Syria and imprisoned anonymously nearly a year ago. He’s accused of joining and aiding ISIS, but those accusations remain untested. There has been no trial, and now it appears that there will never be one because the government has consistently deferred addressing itself to politically inconvenient policy questions. That surrender is a moral, legal, and security failure, apparently arisen from President Trump’s zealous preference for treating suspected terrorists outside the norms of law and civil society.

Though uncompromising rhetoric may impress on the campaign trail, putting it into practice often solves problems only at the expense of creating more later. As this case shows, respecting the regular order of law is essential to our national security. Although President Trump presents himself as a hardliner against terrorism, it appears that his eagerness to punish extraordinarily may in fact lead to a suspected terrorist going free. 

As far as the U.S. government is concerned, John Doe’s story begins in July 2014 – a month after a spokesman for ISIS proclaimed Abu Bakr al-Baghdadi the Caliph of a worldwide Islamic State. At the time, ISIS was near the height of its power, and the government alleges that its prisoner joined himself to their cause as a fighter. The tide of war has since turned decisively against ISIS; last September, John Doe surrendered himself to U.S.-allied Kurdish forces in Syria. He appeared alone and on foot at a checkpoint meant to screen potential fighters from fleeing refugees, and he reportedly identified himself as a member of ISIS to his captors.

For his part, John Doe is said to acknowledge his service to ISIS. He is said to have admitted to attending a training camp and swearing allegiance, as well as doing administrative work to the group’s benefit. However, he disputes the government’s contention that his service was voluntary. He says that he traveled to Syria to work as a freelance journalist, and that only after he was kidnapped and imprisoned by ISIS for seven months that he joined them. He also claims to have deserted his post at one point before being caught, imprisoned again, and returned. 

Whatever the factual matter, the most fundamental issue is that everything we know about this case has been transmitted second-hand. There has been no public presentation or contestation of evidence. Even the prisoner’s name remains secret. After he was captured, the government even claimed that two months of imprisonment was “too soon” to grant him access to a lawyer. The government has attempted nothing less than to disappear an American citizen without the due process of law. However we might despise ISIS and its adherents, the government’s cavalier attitude towards the fundamental rights that must be afforded to all Americans betrays a contempt of justice that would, if left unchecked, betray us all. 

Among the grievances that our Founding Fathers articulated against tyranny, “depriving us in many cases, of the benefit of Trial by Jury” was counted as evidence that a government did not serve the people, but had instead become destructive of the unalienable rights that all people possess. Fortunately, the remaining strength of our constitutional system has forestalled such an end. Thanks to the vigilance of the ACLU, the government has been enjoined from disposing of their captive in Saudi Arabia or Syria or elsewhere. They have been held to the foundational compact between government and society: that the former shall not exercise its awesome power but for the consent of the latter, within the confines of the law. 

Besides even the principled argument of what government should be, there are very practical arguments that guide what government should do. Civilian courts in the United States are perfectly competent to try and judge terrorists. We do not need any extraordinary system to meet the injustice of terror, because the one we already have is more than capable of the task.

In fact, just two months before John Doe was captured in Syria, Ali Charaf Damache was indicted in Philadelphia to face terrorism charges. He was wanted for plotting to assassinate a Swedish cartoonist who caricaturized the Prophet Muhammad through association with Al Qaeda. Conversely, the moribund Military Commission system that was meant to resolve the cases lingering from Guantanamo has completely seized. Though extraordinary measures may initially carry the allure of convenience, they are not worth the trouble they bring or the sacrifice of principle they demand. 

John Doe’s case only further proves that point. The government’s attempt to skirt the law may mean that his case is no longer prosecutable. The government has even had to abandon their plans to foist him onto another country that might do the dirty work for them. Instead, the most recent proposal is to simply release him back into Syria with supplies and the cash he had on him when captured. But, if John Doe is truly a dangerous terrorist, as the government alleges, then their conceit has directly endangered the United States. He could simply rejoin ISIS to wreak further havoc.

Beyond that, it seems likely that John Doe will win recognition of his right to return to the United States proper. Contempt for the law and human rights has not won the United States any greater security. Instead, it directly endangers us. It undermines the most enduring strengths that this nation has, and makes brittle our shields against as yet untold dangers. Sobriety is a greater guardian than zeal.

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