On Thursday, I will be at Guantánamo Bay watching five men appear before a military commission as they hear the charges read against them. The charges are dire: the men are accused of participating in one of the worst and most tragic crimes of all time — the September 11 attacks. The sentence could be death.
There has been a lot of debate about how these men should be prosecuted. The answer is right in front of us. When our government wants to prove a defendant has committed a crime — even an egregious one — it must ensure that when the final gavel comes down, we can walk away with some assurance that, whether we agree with it or not, the outcome is legitimate. To ensure that legitimacy, the government follows the Constitution. It provides defendants with the right to a lawyer, the presumption of innocence, and due process. It collects its evidence and fights like hell to prove its case "beyond a reasonable doubt" in a court of law, and allows the accused to wage a meaningful defense. That's how we define American justice, it's what separates us from our enemies, and it's how the government should prosecute the detainees at Guantánamo. We do not change the rules depending on who is being prosecuted and what they are accused of — that would defeat the whole purpose. But that is exactly what's happening with the Guantánamo military commissions.
For starters, the government resources allocated to the prosecution and defense are completely lopsided. While the prosecution has the full force of the U.S. government behind it, including the military and the Department of Justice, detainees are usually provided with only two JAG lawyers who might not have death penalty experience.
Although the American Civil Liberties Union has been monitoring the military commissions proceedings since they started in 2004 and continues to do so, it made the decision in April that it could be more effective by stepping in to help balance the scales. Having determined that the best way to fight the system and attempt to correct it is from within, we have put together teams of expert civilian attorneys to join under-resourced military defense counsel. In the case of Khalid Sheikh Mohammed, one of the detainees being arraigned on Thursday who is accused of being the 9-11 "mastermind," Idaho attorneys David Nevin and Scott McKay, as well as Gary Sowards, a capital defense attorney who represented "Unabomber" Ted Kaczynski, will be on the defense team. Nevin, McKay and Sowards are part of the ACLU's John Adams Project, named after one of our nation's founders who committed to the principle of fair trials represented British soldiers accused of killing Americans in the Boston Massacre when other attorneys refused to do so. Renowned capital defender Denise LeBoeuf, founding Director of the Capital Post-Conviction Project of Louisiana, will be coordinating the Project for the ACLU.
The ACLU has allocated $3 million for the first year of the Project, and has set aside $15 million for future expenses. As our tradition of defending due process and the Constitution demand, we will be there fighting these farcical proceedings every step of the way.
The ACLU's efforts have been openly supported by respected figures like Retired Rear Admiral John Hutson, former CIA and FBI Director William Webster, former Attorney General Janet Reno, and families of 9-11 victims. These are people who passionately want justice done, but who also realize the importance of getting it right.
Military defense counsel has welcomed the outside assistance, acknowledging their lack of resources and the necessity of attorneys with death penalty expertise and national security experience. Despite the assistance of civilian defense counsel, the military commissions are fundamentally flawed by their brazen neglect of due process. They allow convictions based on confessions possibly derived from torture, secret evidence a defendant cannot rebut, and hearsay evidence. The government has already . Any Law & Order junkie can tell you there's something deeply wrong with this picture.
The commissions have also become inherently politicized, as is evidenced by the from another military commission case for exerting "unlawful command influence." It seems his dual role of supervising the prosecution and providing legal advice to the ostensibly independent "Convening Authority" of the commissions, along with his willingness to use coerced evidence and his desire to that would capture the public's attention, didn't even cut it in this biased system.
The military commissions that have been attempted so far have been riddled with false starts and legal challenges to their very legitimacy. Not a single one has been completed. Only one plea bargain has been struck: the nine-month sentence for David Hicks, the so-called "Australian Taliban."
The Bush administration is careening down the wrong path at great cost to America's constitutional principles and international reputation. Instead of jamming these proceedings through before the next election while making up the rules along the way, it should take a hard look at the problems these farcical cases have encountered so far and abandon them before it digs itself deeper into this abyss. There is no reason these prosecutions cannot occur in our tried and true criminal justice system or military courts that follow the , both of which are able to deal with national security issues and come fully equipped with constitutional safeguards.
Why does this matter? Because how we respond to the atrocities thrust upon us on 9/11 says everything about who we are as a nation. The manner in which we seek justice against those accused of harming us will determine whether the United States will be seen at home and abroad as a nation of laws, or as a nation willing to forsake our values at a time when it's most important to uphold them. If we choose the latter, we all lose.
Learn More About the Issues on This Page
-
Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
Press ReleaseDec 2024
National Security
Religious Liberty
ACLU Statement on New White House Strategy to Counter IslamophobiaACLU Statement on New White House Strategy to Counter Islamophobia
WASHINGTON – The Biden administration today released the first-ever national strategy to counter Islamophobia and related forms of bias and discrimination, including hate against Arab, Sikh, and South Asian Americans. In advance of the strategy, American Civil Liberties Union and its partners had urged the administration to overhaul government programs that reflect anti-Muslim discrimination. In particular, we have called for urgent action to constrain governmental agencies from continuing to exercise their authorities and technology to wrongly surveil and investigate, watchlist, and question and detain Muslims at the border, as well as deny immigration benefits to people from Muslim-majority countries. While the White House raised expectations that many of these issues would be addressed, the final strategy ended up falling far short. The following is a statement from Hina Shamsi, director of the ACLU’s National Security Project: “While this strategy acknowledges discrimination and its harms, it does little to end them and is a squandered opportunity. For decades, American officials have invoked national security to pass laws and implement programs that disproportionately harm Muslims and people perceived to be Muslim. A serious anti-discrimination strategy would concretely address multiple bias-infused government practices that deny our communities equal participation in civic life and our democracy, like federal watchlisting, surveillance, and investigation. We’re profoundly frustrated that the administration didn’t take even the basic, overdue step of recognizing that anti-Muslim discrimination is uniquely normalized and embedded in government policies.” -
VirginiaDec 2024
National Security
Trabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted ManTrabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted Man
Our client, Nizar Trabelsi, is in the United States against his will. The federal government brought him here from Belgium more than a decade ago and charged him with terrorism-related crimes. At trial, the government’s case failed: a federal jury found Mr. Trabelsi not guilty. But instead of allowing Mr. Trabelsi to return to Belgium after his acquittal, the United States placed him in highly restrictive immigration detention and began an ongoing effort to force him to Tunisia, where he was born and where he will very likely be tortured. Mr. Trabelsi’s detention violates the Constitution, immigration law, and the extradition treaty between the United States and Belgium. Through this lawsuit, he seeks to return to Belgium, and he demands an immediate improvement of his detention conditions. -
Press ReleaseDec 2024
National Security
Immigrants' Rights
Federal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is UnlawfulFederal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is Unlawful
ALEXANDRIA, Va. — This week, the U.S. District Court for the Eastern District of Virginia ruled that the court does not have jurisdiction to decide whether the government can continue to detain Nizar Trabelsi, a Tunisian national who was brought to the United States against his will for prosecution and was cleared of all charges last year. The ruling means the United States will be able to continue to detain Mr. Trabelsi while it attempts to deport him to Tunisia, where he was born and where, as an immigration judge ruled earlier this year, he will likely face torture. The court also concluded that even if it did have jurisdiction over Mr. Trabelsi’s case, his claims challenging the government’s detention of him would fail. “Reviewing claims that the government is holding someone unlawfully is at the core of the judicial function, and we’re heartbroken for our client that the court got this so wrong,” said Brett Max Kaufman, senior staff attorney with the ACLU’s Center for Democracy. “The government’s arguments in defense of Mr. Trabelsi’s detention makes a hash of the Constitution, immigration laws, and its own extradition treaty.” In 2013, the United States forcibly extradited Mr. Trabelsi from Belgium to face criminal charges in the United States. In July 2023, after almost 10 years of highly restrictive pretrial detention, a federal jury cleared Mr. Trabelsi of all charges. But instead of releasing Mr. Trabelsi or returning him to Belgium, the U.S. transferred him to immigration detention, wrongly treating him as an applicant for admission and placing him in the deportation process. Over the years, the Belgian government has issued multiple formal diplomatic requests asking the U.S. to facilitate his return, but the U.S. has refused to send him back. Mr. Trabelsi filed a lawsuit challenging the government's authority to detain him. He also sought immediate improvements to his detention conditions. Those claims were not part of the court’s ruling today, and will continue to be litigated on a separate track. “Mr. Trabelsi only wants to return to Belgium after being illegally extradited to the United States, held for ten years, and then acquitted by a jury of any crimes,” said Nicole Hallett, clinical professor of law and director of the Immigrants’ Rights Clinic at the University of Chicago Law School. “He cannot be held indefinitely and we will continue to fight to make sure that justice ultimately prevails.” Mr. Trabelsi is represented by the American Civil Liberties Union, the University of Chicago Law School’s Immigrants’ Rights Clinic, the ACLU of Virginia, and Professor Jonathan Hafetz of Seton Hall Law School. The complaint in Trabelsi v. Crawford was filed against Jeffrey Crawford, warden of the Farmville Detention Center where Mr. Trabelsi is being held; Liana Castano, ICE field office director for the Washington Field Office; Alejandro Mayorkas, secretary of the Department of Homeland Security; and Merrick Garland, U.S. attorney general.