Yesterday, we pestered anyone who would listen to us to arrange meetings with the Commission prosecutors and personnel, and we were given to believe that we were about as likely to get a meeting with the tooth fairy. So, when we serendipitously bumped into some of those prosecutors this morning in the parking lot outside the base's Starbucks hut, we concealed our surprise and struck up a conversation.
I asked one of the prosecutors -- who flinched theatrically when I told him I was an ACLU lawyer -- why it wouldn't have been preferable to try these detainees under an existing legal system, rather than inventing a new one on the fly. "If they had wanted to be tried in a civil law system," he intoned, "they should've attacked France." Before we could fish for more such gems, and in the middle of a harangue about Romania under Ceausescu, we were hurried away to our first appointment of the day: a tour of the kitchen where preparations were under way to serve the detainees a traditional Eid meal. With on our minds, we watched as the kitchen staff prepared what seemed to be ample portions of lamb kabobs, roast chicken, fresh baked bread, and rice.
For the four groups that have sent human rights observers to Military Commission proceedings - the ACLU, , , and - this was the closest we had been to where the detainees are housed. Our van drove along the outer boundary of Camp Delta, which is encircled by multiple rows of barbed wire fencing. Green plastic sheeting prevented us from seeing inside, and our requests to enter the camp were politely refused. Later, we would be permitted to stroll through Camp X-Ray, the original makeshift home of the first 312 detainees, which has been closed since the construction of Camp Delta in the spring of 2002 and is now a tangle of overgrown weeds and banana rat droppings.
Compared to yesterday and to previous visits, today was a day of relative openness. To our surprise, the Chief Prosecutor, Colonel Morris Davis, agreed to sit down with us, and at times he spoke candidly about some of the challenges he faces. One of our principal concerns about this Commission process is that there is no rule prohibiting the use of evidence obtained through torture or other coercive interrogation methods. (See the ACLU's brief challenging the military commissions in the case of the case of Salim Ahmed Hamdan). And our concern is far from speculative: through litigation under the Freedom of Information Act, we've obtained - including the eyewitness accounts of FBI agents - that torture has occurred here and that "highly aggressive" interrogation techniques have been employed.
Omar Khadr, the Canadian teen who will appear before the Commission tomorrow, has alleged through counsel that during the course of his numerous interrogations, he was placed in stress positions, forced to urinate on himself, and then doused with pine oil solvent and used as a human mop to clean the floor; and that on various occasions he was threatened with transfer to other countries where he would be raped and tortured.
Colonel Davis acknowledged that the "treatment of detainees," and the rules permitting the use of evidence that would be categorically excluded in U.S. courts or in ordinary military courts martial, would present him with some difficult decisions as a prosecutor. "In my job, that will be one of those hard calls," he said. But, he "gets to drive the train," he "didn't get to build the railroad." And he believes that the prosecution may be able to present its case against Khadr without the need for any statements obtained through interrogation.
This afternoon, during a briefing with a public affairs officer, we asked whether, four years after the arrival of the first detainees here, interrogations of detainees are ongoing. His response - "We continue to interrogate and to receive troves of strategic intelligence that is vital to our War on Terror" - was somehow as dispiriting as anything we've heard or seen. When the Supreme Court considers the legitimacy of the Military Commission system in the Hamdan case this spring, its decision will be vitally important to our efforts to restore the rule of law to our government's conduct.
But nearly 99 percent of the detainees who have been brought here have never even been charged with crimes, even under the flawed Commission system. Some of them continue to be interrogated, even as the passage of time diminishes the relevance of any information that might be extracted from them. I'll be thinking about those detainees tomorrow morning when the Commission reconvenes. I'll report on the day's events tomorrow evening.
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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.