Hearings continued Friday and Saturday in the case of Canadian Omar Khadr, who again was absent from the proceedings. Accused of throwing a grenade that killed an American medic and participating in a terrorist conspiracy beginning when he was only 10 years old, Khadr literally has grown up at Guantánamo.
The military commission is convening through this week to determine whether self-incriminating statements Khadr made to interrogators should be excluded from trial because of torture and other abuse. Khadr's lawyers say confessions extracted through torture and other abuse, as well as subsequent self-incriminating statements to that relied on the coerced confessions, should be inadmissible at trial.
Unfortunately, at the end of these hearings there may be a lot we still won't know about how Khadr was treated in U.S. custody. Only seven of the at least 31 interrogators who conducted over 100 hours of interrogation of Khadr at Bagram and Guantánamo will testify. Defense lawyers have argued the military judge should subpoena the remaining interrogators, but the judge hasn't subpoenaed the other interrogators yet (in federal court, defense lawyers and prosecutors have subpoena power, but not in the military commissions, where they must rely on the military judge).
On Friday and Saturday we heard testimony from a military interrogator, three FBI agents, and a Naval Criminal Investigative Service (NCIS) agent who interrogated Khadr during the year after his capture at age 15 in Afghanistan. These prosecution witnesses painted a picture of a cooperative 15- and 16-year-old who was eager to provide the information they demanded — including during interrogations that took place while he was confined on a hospital gurney. They described a boy who requested children's storybooks and told them he liked pizza, Coca-Cola, video games, horses, and cars. They said Khadr missed his grandmother and wanted to return to Canada to live with her, and eventually hoped to become a doctor.
The witnesses also revealed they weren't considering Khadr for prosecution at the time of his interrogations, and in fact, a 2002 military assessment indicated Khadr "was being considered for release back to Canada." The prosecution's witnesses also told the story of a boy who was used by his father, who told him he was taking a trip to help out as an interpreter, but instead sent him to an al Qaeda safehouse for training.
All of which raises the question of why, eight years later, we are prosecuting this former child soldier instead of into society.
Perhaps most intriguing was the testimony of a military interrogator, identified only as "Agent 11," who conducted 12 interviews with Khadr at Guantánamo in October and November 2002, when he was 16 years old. Agent 11 said she used an "incentive-based" interrogation technique with Khadr, in which she rewarded him with M&Ms, Fig Newtons, and game books in exchange for cooperation. She said Khadr participated in interrogations , and he "understood if he was cooperative it would expedite his repatriation back to Canada."
Agent 11 testified that her boss selected her as Khadr's interrogator because she could be a "mother figure" to the then-16-year-old boy — though the attractive brunette was only in her 20's at the time (journalists here dubbed her the "honeypot", and on cross-examination Khadr's lawyer suggested that perhaps she was selected more as a "female" than a "mother figure"). According to Agent 11, Khadr said she could take him out of his cell for an interview anytime, telling her, "I'd rather be in the booth with you than bored in my cell."
And yet through all the testimony about Khadr's willingness to talk to interrogators, there were glimpses of the . One FBI special agent told the court Saturday of how he saw Khadr sobbing inconsolably, rocking back and forth and "appearing suicidal." According to the special agent, a Behavioral Science Consultation Team (BSCT) was called in to deal with the situation (BSCT are military psychologists who ). Saturday's hearing also included the playing of a video of Khadr's interrogation by Canadian officials in February 2003, showing the teenage boy sobbing and begging for help (I and others who don't have security clearance had to clear out of the court while the video played, though it's ). Testimony by defense witnesses this week is expected to paint a far darker picture of Khadr's interrogations than that presented by the prosecution last week.
Watching Friday and Saturday's hearings, I was struck by what a terrible choice this case is for the first trial in the discredited military commission system under President Obama.
And evidently the Obama administration agrees. On Saturday that the Obama administration is actively seeking a plea agreement, quoting a senior administration official who admitted, "This is not what you would choose to open with." Since the Wednesday that Khadr's lawyers had rejected a of five years' imprisonment (on top of the eight years he's already served), his lawyers here have refused to confirm these reports, but speculation about a possible plea agreement is rampant here at Guantánamo.
Hopefully the Obama administration will decide that eight years in Guantánamo is punishment enough for a child soldier who was taken to a conflict zone by his family and subsequently mistreated for years in U.S. detention.
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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.