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U.S. Seeks to Send American ISIS Suspect to Another Country’s Custody

A judge for the Federal District Court for the District of Columbia had ordered the government to give the man in custody at least 72 hours’ notice before any transfer.Credit...Zach Gibson for The New York Times

WASHINGTON — The United States military intends to transfer an American citizen who has been detained in Iraq for more than seven months to the custody of another country in several days, the Justice Department told a judge on Tuesday.

But the man, whose name has not been made public, does not want to go to that country and intends to fight the proposed transfer in court, according to his lead lawyer, Jonathan Hafetz of the American Civil Liberties Union.

“The Trump administration has been detaining this American citizen unlawfully for more than seven months, and forcibly rendering him to another country would be an unconscionable violation of his constitutional rights,” Mr. Hafetz said in a statement.

The government redacted the name of the country that would take custody of the man in its new court filing. But officials have said the Trump administration was asking Saudi Arabia to take him off American hands. He could also be transferred to Iraqi custody.

Transferring the man would render moot several important and unresolved legal questions raised by his case. They include whether the Obama and Trump administrations’ claim that Congress’s authorization to fight Al Qaeda covers the Islamic State, and whether the judge overseeing the man’s lawsuit, Tanya S. Chutkan of the Federal District Court for the District of Columbia, had legitimate authority to order the government to give him at least 72 hours’ notice before any transfer.

The man was born in the United States to visiting Saudi parents, making him an American citizen, but raised in Saudi Arabia, where he became a dual citizen.

He was captured by a Syrian militia in September and turned over to American forces as a suspected low-level Islamic State member, raising a dilemma about what to do with him. While security officials wanted him to remain locked up somewhere, Justice Department officials struggled to assemble sufficient courtroom evidence to prosecute him.

In the court filing on Tuesday, the Justice Department redacted details about the proposed transfer. But it said that after “extensive discussion” with his lawyer about the option, the man had decided not to consent to the transfer. Nevertheless, the government wants to proceed and urged Judge Chutkan not to interfere, saying that it was “imperative that the transfer occur quickly and smoothly.”

A court order delaying or blocking the transfer “would undermine the United States’ credibility with an important foreign partner that has agreed to this request,” and could lead the other country to reconsider its agreement to take the man “or could adversely affect its willingness to engage with the United States on some future detainee transfers,” the filing said.

But Mr. Hafetz said the government had no right to send his client to the other country against his will, saying, “He should either be charged or freed, not handed over to an unnamed foreign government.”

Judge Chutkan has scheduled a hearing for Thursday morning.

When captured, the man apparently told interrogators that he had worked for the Islamic State guarding a gas field and monitoring civilians, and captured recruiting files indicate that he registered with the group as a fighter in July 2014, a court document filed earlier said.

But the man also insisted to his interrogators that he had traveled to Syria intending to work as a journalist and was arrested, later agreeing to work for the Islamic State to gain release from prison, it also showed. The court filing did not accuse him of having fought for the group.

Follow Charlie Savage on Twitter: @charlie_savage.

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