For nearly two months, the U.S. military has been detaining an American citizen at a secret jail in Iraq, denying him access to a lawyer and even refusing to release his name. The Trump administration is calling the citizen an “enemy combatant,” claiming he was fighting for ISIS in Syria, but it has not presented any evidence to back up its allegations.

We went to court asking a judge to protect the citizen’s constitutional rights, including the right not to be imprisoned without charge and the right to challenge his detention in court. The Trump administration has told the court that it doesn’t have to respect these essential due process rights.

The Pentagon and Justice Department ignored our initial request for access to the U.S. citizen so we could advise him of his rights and offer him the opportunity of legal representation. We then filed a habeas corpus petition on the citizen’s behalf in federal court in Washington, demanding that the government justify its detention of the unnamed American. All U.S. citizens have the right to habeas corpus no matter where the government holds them or what it accuses them of. And, as we know from the government’s practices in places like Guantánamo, when it tries to undercut this right it opens the door to abuses, including the arbitrary detention of innocent people.

We also asked the court to order the government to connect the citizen with ACLU attorneys because he is facing grave threats to his liberty and possibly his life. The government could continue imprisoning him without charge, force him to confess to crimes he may not have committed, or, as a Human Rights Watch expert warns, hand him over to Iraqi custody, in which he would likely be subjected him to torture, an unfair trial, and possible execution.

The government’s response is straight out of “Catch-22.” It is arguing that the ACLU cannot seek relief on the citizen’s behalf because we have never met him and don’t know his wishes. But that is a conundrum of the government’s own creation because it has provided no other way for this citizen to legally defend himself.

Instead, the government is piling one speculation on top of another. Maybe, the government suggests, the American could have conveyed his needs to the International Committee of the Red Cross (ICRC) when it visited him in custody, and maybe that organization could have contacted his family, and maybe his family could have found a lawyer to file a case on his behalf.  

 In fact, the American citizen has made his wishes clear. U.S. officials told The Washington Post that the citizen has repeatedly demanded a lawyer. The government has effectively denied that request. And, as a former ICRC official explains in our latest court filing, there are multiple reasons why the U.S. citizen is unlikely to obtain counsel by going through the ICRC. To begin with, the ICRC’s main purpose is to monitor conditions of detention, not to find lawyers for prisoners. The citizen may not have family he can contact, or he might be afraid of contacting family for fear they will suffer retaliation. It is also possible the citizen’s family might not welcome contact from him, or, even if it did, the family may not know how to navigate the U.S. court system.

The bottom line is that the imprisoned American citizen clearly wants a lawyer and doesn’t have one, thanks to the roadblocks the government itself has put in place.

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The government also complains that allowing counsel to have access to the citizen wouldn’t be “easy.” But constitutional rights do not depend on the government’s convenience. Federal courts have ruled that citizens have a right to an attorney even when detained as enemy combatants at secure military facilities, whether in the U.S. or abroad. And for more than 13 years, courts have ensured attorney access to non-citizens imprisoned at Guantanamo, rejecting government attempts to restrict it. Even George W. Bush’s attorney general and former federal district court judge, Michael Mukasey, ruled that the government’s national security interests cannot override an American citizen’s right to a lawyer.

By opposing the ACLU’s efforts in this case, the Trump administration is taking a very dangerous step: It is blocking an Americans citizen’s access to his own country’s courts. It is also undermining the bedrock guarantees of habeas corpus, which for centuries has served as the greatest check on unlawful government detentions. Now, we’re fighting to stop the government’s unconstitutional attempt to create a new rights-free zone.

When a judge sent Shane Norrid to an addiction rehab program rather than to jail, Norrid thought he’d get the help he needed. Norrid packed his bags and traveled to Decatur, Arkansas, to begin a program he believed would change his life for the better. Instead, he landed in a human trafficking scheme built on the false promise of addiction treatment.

Norrid and hundreds of other individuals ended up at the Drug and Alcohol Recovery Program (D.A.R.P.) either because they were sent there by a court or went voluntarily for drug or alcohol treatment during probation. Instead of receiving counseling and addiction recovery services, however, they worked grueling hours for no pay, lived in inhumane conditions, and received little to no actual addiction treatment.

The ACLU of Oklahoma filed suit this week in federal court on behalf of seven plaintiffs, including Norrid. Each one has harrowing stories of forced, unpaid labor, dangerous conditions, and cruel treatment while in the D.A.R.P. program. All of them lived with untreated addiction and were forced to work at facilities where there was an available supply of drugs and alcohol.

The suit alleges that D.A.R.P. has been running an unpaid labor camp disguised as a rehabilitation center for the last decade. The plaintiffs were subjected to long days of physically-demanding labor, mostly contracted out to private corporations, doing work such as welding, plastic product manufacturing, and chicken processing. Many of these businesses, who knowingly benefited from forced labor trafficking, are also named as defendants in the suit, including Hendren Plastics, Inc., R&R Engineering Co., Inc., Simmons Foods, Inc., and Western Alliance, Inc. All of the participants’ pay was turned over to D.A.R.P. or its president, Raymond Jones. If they did not complete the program by working hundreds or thousands of hours, they were threatened with prison time.

D.A.R.P. offered very few services that could be considered legitimate addiction treatment. Participants were sent to one Alcoholics Anonymous meeting a week in a nearby town. Otherwise, most of the “treatment” offered by the program was nothing more than participants reading from a Twelve Step book together before or after their work shifts, without the guidance of licensed counselors or addiction recovery professionals.

Men lived in cramped quarters with a never-ending bed bug infestation that caused bleeding wounds.

Most troubling are the inhumane conditions in which D.A.R.P. participants lived and worked. During their daily 12-hour shifts, D.A.R.P.’s unpaid workers were often fed just one paltry bologna sandwich. Some participants at D.A.R.P.’s facility in Tahlequah, Oklahoma, were fed spoiled or otherwise unmarketable chicken from its now-defunct chicken processing plant five nights per week. At each facility, men lived in cramped quarters with a never-ending bed bug infestation that caused bleeding wounds.

It’s obvious that the priority of this so-called rehab program was sourcing cheap labor and making a profit for D.A.R.P.’s leaders, not providing the addiction treatment expected by participants.

Alternatives to incarceration are an important component to battling the mass incarceration crisis. But profiteering schemes like D.A.R.P. are not the answer. Without proper oversight, qualified counselors, and meaningful services, incarceration alternatives like this one are ripe for abuse. In the case of D.A.R.P., human trafficking is the only accurate description for the forced labor, lack of medical care and appalling living conditions that the plaintiffs suffered through.

The ACLU of Oklahoma was informed about D.A.R.P., Inc.’s operations, and the similar operations of C.A.A.I.R., by Brianna Bailey’s report on D.A.R.P. and C.A.A.I.R. in an article published in The Oklahoman on Oct. 1, 2017, and an article by Reveal Center for Investigative Reporting published on Oct. 4, 2017. The ACLU of Oklahoma’s suit only involves D.A.R.P. at this time.

The bleak truth of justice in America is that money matters.

Too often, people who are accused of a crime and cannot afford to hire their own lawyer get herded through the criminal justice system without the zealous defense that our Constitution guarantees. “Innocent until proven guilty” is a cruel and hollow motto when you don’t have an adequate defense, and the government is employing its vast resources to lock you up and take away your freedom.

This isn’t how it’s supposed to work. The presumption of innocence shouldn’t depend on the size of your wallet.

The Constitution demands that the poorest among us are provided an effective defense. That’s why I committed my entire legal career to defending people who can’t afford their own lawyer. It’s also why I am joining the ACLU’s lawsuit against the state and the governor of Nevada for the longstanding and widespread failures of Nevada’s rural public defense system.

I was Nevada’s federal public defender for over two decades. In that role, I supervised a functional public defense system where we did our best to get our clients released pretrial, thoroughly investigated our clients’ cases, regularly communicated with our clients and answered their questions, hired expert witnesses when necessary, poured over discovery, interviewed witnesses, filed motions to suppress evidence that was obtained unconstitutionally, explained the immigration consequences of plea deals to our clients, held the government to its burden of proof at trial, and explored every mitigation avenue possible for clients who were convicted and would be sentenced.

In other words, we were zealous advocates for each and every client, even though they couldn’t afford to pay us. This is what the Constitution requires.

This isn’t what public defense looks like in many of Nevada’s state courts. In these courts, you get a different level of justice depending on who you are and where you are accused of a crime. If you happen to be in rural Nevada — which is most of the state geographically — and you can’t hire your own lawyer, your prospects for getting a good defense are grim.

If you are arrested in Las Vegas or Reno, a lawyer will be assigned to your defense who is subject to the scrutiny of a selection process by criminal defense experts. That lawyer won’t have to choose between revealing your defense strategy to the judge trying the case and getting the resources needed to hire an expert or an investigator. That lawyer will not personally lose money by taking your case to trial or make more money by convincing you to take a plea deal you don’t want to take.

Forty or more miles away, in the cash-strapped rural counties, you’ll get a lawyer who may not have any previous criminal defense experience, who is often paid a flat fee for your case regardless of its complexity, and who also has private paying clients. That means the more time your lawyer spends working on your case, the less money he or she will take home.

Simply put, in rural Nevada, your case, and your liberty, will be no one’s priority.

Perhaps most disturbingly, this crisis is old and persistent news in Nevada. In 2008, the Nevada Supreme Court’s Indigent Defense Commission Rural Subcommittee found that the “rural counties are in crisis in terms of indigent defense.” In 2013, the Sixth Amendment Center published an extensive report on the state of the right to counsel in Nevada and concluded that “serious systemic deficiencies [are] plaguing rural counties.” During the 2015 legislative session, a Senate bill was introduced to solve some of the systemic public defense issues. The bill died in committee.

For the next two years, the status quo continued while the state routinely prosecuted public defendants in rural counties without constitutionally adequate legal representation. Earlier this year, the governor signed into law Senate Bill 377, which created a commission to “make recommendations to the Legislature to improve the provision of public defense services and to ensure that those services are provided in a manner that complies with the standards for the effective assistance of counsel.” In other words, everyone knows the problem exists, but rather than solving it, Nevada just wants to endlessly rediagnose it. Despite years on notice, little has changed for people who need a public defender in Nevada’s rural counties.

It hasn’t always been this way in Nevada. In Gideon v. Wainwright, the U.S. Supreme Court mandated that the states assure competent lawyers be provided to defendants who need a public defense in their courts. In 1971, Nevada responded, creating an independent State Public Defender Commission to fund and oversee the delivery of public defense services by the state public defender. But in the years since, Nevada has retreated and now largely shirks its constitutional duty, leaving defendants who need a public defender at the mercy of failing county-run and county-funded systems.

The state’s refusal to shoulder its duty to ensure that poor people in Nevada’s rural counties receive adequate representation results in unconscionable inequity. The consequences are real and devastating for people sitting in rural jails, most of whom only see their lawyers a few minutes before a hearing or whose lawyer may shove a life-changing plea agreement at them on a case that hasn’t even been investigated.

This problem has been studied for too long. It’s time for a solution. Adequate defense is a right for all Nevadans, not a privilege reserved for the privileged.