One of the unintentional virtues of a legal system operating without clear rules is that it's rarely dull. Today was no exception. It was yet another day of firsts.
The Military Commissions featured their very first witness – a balding and burly officer identified colorfully as "Colonel B." The pseudonym left some seasoned Commission observers, including members of the media, scratching their heads, because Colonel B is no mystery man. He is widely known as the officer in charge of custody operations here and has given media tours under his full name – which remained emblazoned on his uniform throughout today's proceedings.
At issue today were the conditions of confinement to which the accused, Algerian citizen Sufyan Barhoumi, has been subjected for the last month. Mr. Barhoumi, like Mr. Al Qahtani, is accused of conspiracy for his alleged participation in al Qaeda explosives training. He is missing all but one finger on his left hand -- of an accidental landmine explosion in 1997. During that prior tribunal, he emphatically denied al Qaeda membership and insisted that he traveled to Afghanistan in 1999 to train for battle against the Russians in Chechnya.
Barhoumi's military defense counsel, Captain Wade Faulkner, initiated today's hearing by challenging the transfer of Barhoumi from "Camp 4" to "Camp 5," and Colonel B was called to the stand to explain the circumstances of that transfer. Camp 4, Colonel B explained, is where most of the "highly compliant" detainees are housed. It is a medium security facility where detainees live and eat communally – "like a family picnic" – and have 10 to 14 hours of time outside the block and regular access to sports facilities. Camp 5, in contrast, is a traditional maximum security facility, where detainees are confined to their cells for all but two hours each day, and can communicate with the outside world only through a 12-inch "bean hole" in the door through which meals, mail, and other items are passed. For almost a year, until last month, Barhoumi was housed in Camp 4. Then, without warning or explanation, he was transferred to Camp 5.
Captain Faulkner wanted to know why his client was being subjected to what he reasonably considered to be punitive conditions. Colonel B – a straightforward witness taken to saying "negative" for "no" and "vo co" for "vocal command" – offered two reasons. First, he explained, the detention system was being reorganized, and he needed the space in Camp 4. This produced an exchange rich in tautology. Did Barhoumi's presence in Camp 4, Captain Faulkner inquired, interfere with Colonel B's reorganization plans? Yes, Colonel B replied.
Faulkner: How?
Colonel B: I need the space in Camp 4 for another detainee.
Faulkner: Why not move the other detainee to Camp 5, instead of moving Mr. Barhoumi?
Colonel B: Because the other detainee has been highly compliant and deserves to be in Camp 4.
Faulkner: Hasn't Mr. Barhoumi been highly compliant?
Colonel B: Yes.
The second reason for moving Barhoumi to Camp 5, according to Colonel B, was that Army regulations, as well as the Third Geneva Convention – though they had "not quite caught up with the environment" at Guantanamo – suggested that the separation of "pretrial detainees" from the general population was required. This was exactly backwards. Army regulations, consistent with the Fifth and Fourteenth Amendments, require that pretrial detainees – that is, those who have not yet been convicted of a crime – be afforded greater rights than those already convicted. Any separation from the general population is effected in order to ensure that detainees awaiting trial are not subjected to any punishment prior to adjudication of guilt or innocence.
Citation to the Geneva Conventions was even more curious, and was yet another example of the Administration's highly selective regard for that treaty. The Geneva Conventions plainly do not support the challenged transfer of Barhoumi to Camp 5 and, if they were recognized as binding authority at Guantanamo, would require a radical transformation of the detention and prosecution procedures at the camp – something that is unlikely to occur except under federal court order.
In the afternoon, Commission observers were treated to yet another first: Barhoumi himself took the witness stand to testify about the consequences of his transfer to Camp 5. The transfer, he said, had affected him both physically and psychologically. He removed the bandage on his left hand to reveal his damaged stump. The constant air conditioning was causing him discomfort, he explained, and he was having difficulty operating the sink and toilet, which required the pressing of a button. In Camp 5, there was no other detainee to assist him with various tasks. He believed that his transfer amounted to punishment, and he had considered boycotting Commission proceedings in protest.
Captain Faulkner then formally moved the Presiding Officer to order Mr. Barhoumi returned to Camp 4, or – if the Presiding Officer believed that he lacked the authority to compel such a transfer – to halt Commission proceedings until Barhoumi was returned to Camp 4. The Presiding Officer, after taking a recess to consider the motion, denied it, holding that there was no evidence of punitive intent underlying the transfer, and that Colonel B had provided legitimate reasons for Barhoumi's transfer to which the Commission should defer.
The ruling, delivered in legal jargon familiar to anyone who has litigated prison conditions cases, sounded very much like a legal opinion, with one exception: It cited no law. Once again, observers and participants were left in the dark as to what body of law – the Constitution, the Uniform Code of Military Justice, international law, or something else – these Presiding Officers will apply to Commission proceedings. Perhaps, in time, the Supreme Court will supply that answer.
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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.