Today I witnessed history in the making.
I was one of 49 people inside the military commission courtroom allowed to observe the first military commission in the 60 years since World War II. America's system of justice was on the world stage.
We got to the ferryboat at about 7:30 a.m., but the commission didn't begin until about 10, after a snafu with the closed-circuit television. As the participants in the commission held their breath, Salim Ahmed Hamdan walked in with his lawyer, Lt. Cmdr. Charles Swift, a Navy officer. Mr. Hamdan's face lit up when he saw Mr. Swift. You could see the relief in his face. He was looking around, smiling at everyone. It may have been that he was happy to see so many people after having been kept in solitary confinement, or it could also be that he didn't fully possess a complete understanding of why we were there.
He appears to have lost quite a bit of weight, more than 50 pounds, from the photograph that his defense counsel provided us. But we know nothing about his condition, as obviously he was kept under strict lock-down and away from us.
What happened over the next eight hours had the look of a judicial proceeding, but, as you know, the devil was in the details, and the details left this civil libertarian very unsatisfied.
The problems that the ACLU had identified from the beginning were borne out in concrete detail. First, the issues with the lack of an independent review outside the chain of command became particularly clear. Several commissioners had very active roles in the government's war on terror: two with regards to operations in Guantanamo and one with substantial experience in the battlefields in Afghanistan. The lack of distance and the possible appearance of "victor's justice" was a problem that Mr. Swift underscored in his questioning of the commission, known as "voir dire."
Number two: the rules of evidence are still confused. What we do know is that they are inferior to what's used in military courts martial. One commissioner commented in the voir dire that rules of evidence certainly apply, but the defense counsel reluctantly had to basically say, "No sir, not really." Also Mr. Hamdan was denied an opportunity to review or rebut even a summary of secret evidence being used in his case. The defense lawyer and the ACLU agree that Mr. Hamdan should not receive classified documents, but he must be allowed the opportunity to review and contest a summary of the secret evidence. That's what we do in other contexts.
The third problem concerned the inability of defense lawyers to adequately represent their clients' interests, notwithstanding their heroic efforts. The deck is still very much stacked against the defense - the prosecution has many more resources. At one point, the translation for Mr. Hamdan was so poor that the accused couldn't even understand the charges being read against him. They had to momentarily excuse the translator who was botching it up. The only full statement that Mr. Hamdan said in his native tongue was "please sir, give my attorney an assistant." Mr. Swift is the only lawyer assigned to Mr. Hamdan right now.
Another problem that became painfully clear was that only the presiding officer is a lawyer, whereas the other four commissioners are not. The defense counsel did its best to explain concepts like jurisdiction and post hoc, but this isn't going to be easy and it's certainly going to put the presiding officer in a greater position of power vis-Ă -vis the other commissioners. Interestingly enough, all of their votes are supposed to count equally. How can that possibly happen when only one is a lawyer and that lawyer is the presiding officer? We will see.
There are also some tangled relationships between the presiding officer and the appointing authority, which will probably get hammered out in coming days through the other commissions. But the big news on that front that dropped today was whether Col. Peter Brownback III should remain as presiding officer.
Notably, the presiding officer does not have an active bar license (though that is apparently not required in military proceedings). But, more importantly, Mr. Brownback held a meeting with the prosecution earlier this summer at which the defense counsel was not present and it appears that he made some statements about whether or not defendants had a right to a speedy trial.
Right before our adjournment at 7 p.m., the defense counsel asked the presiding officer to allow him to enter a transcript of this meeting that was taped unbeknownst to the presiding officer. The presiding officer reopened the questioning and did allow the transcript to be entered, to Mr. Brownback's credit. Whether or not he is removed for cause will be decided in the future. It reminded me of Supreme Court Justice Antonin Scalia having to recuse himself because he expressed an opinion before he saw the facts on the Pledge of Allegiance case. We'll see if that's the case here.
Some of the Aussie media who bought me a Red Stripe beer at the Combined Bachelors' Quarters were asking me if this was the best that America could do. However you answer that question, it certainly doesn't look good.
Finally, I want to say a word to the ACLU family about the good men and women in uniform. Sometimes we civil libertarians see members of the military with suspicion. But let me tell you, some of the best civil libertarians I've met recently are soldiers who believe in due process and are doing their best to conduct a fair trial despite the fatal flaws in this system. They make America look good, because even though they've been dealt a terrible hand, they're defending their clients with all the zeal of a Johnny Cochran.
The prosecution was also quite thoughtful and even-tempered and even-handed. They're making the best of a terrible situation, but our government shouldn't have put them in this situation in the first place. We have a good system of military justice that we should be proud of and we should have used it.
There's also this one Navy guy who's been assigned to escort us around. After all the snafus (take a look at yesterday's Washington Post) he has taken excellent care of us. He believes in the commission's fairness and will vote for George Bush, but he also believes that the NGOs are here to do a job and form an independent opinion.
The fact that there are men and women like him in uniform who support this president, who support these commissions, but who also understand the important role of the ACLU, should give all civil libertarians hope. Remember, Ben Franklin was asked after leaving the Constitutional Convention: "What have you wrought?" "A Republic," he answered, "if you can keep it." With patriots like the defense counsel and with open-minded folks like this Navy guy, we may have a fighting chance.
I'll see you tomorrow.
Anthony
P.S. Some of you asked about our access to Camp Delta. That has been denied, but we are appealing it to the Department of Defense. Apparently tomorrow we should be able to tour the holding cell in the military commission building as well as the offices of the defense counsel. The prosecutor and the presiding officer have so far declined to meet with us. In fact, the presiding officer told us that he'd be happy to meet with us when this whole process was done. And, when I commented that we're only beginning four commissions of the 581 men who are held here at Guantanamo and that it might take a very long time to complete this process, he simply said he was not interested in meeting us at this time. If one thing is for sure, it's that no matter when they wrap up this failed system of justice, the ACLU is going to be around to ask him for that meeting.
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.