Thursday’s long hearing started with a dramatic statement read by Omar Khadr. Lt. Col. Colby Vokey, his assigned military lawyer, asked the presiding officer to allow Omar to make a short statement. Mr. Khadr — who looked much older than 19 — read in English from a handwritten note:
"Excuse me Mr. Judge I'm being punished for exercising my right and being cooperative in participating in this military commission. . For that I say with my respect to you and everybody else here that I’m boycotting these procedures until I be treated humanely and fair."
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Mr. Khadr's military lawyer explained that Mr. Khadr had been moved to solitary confinement since March 28 and that the government had not informed his attorneys or provided an official explanation for his move. The defense attorneys asserted that Mr. Khadr asked them not to move forward on his behalf. Mr. Khadr seemed desperate to challenge his conditions of confinement and used the threat of boycott as a way to express his complaints. He was not the first prisoner to utilize this threat, as my colleague Ben Wizner observed earlier.
Mr. Khadr is a Canadian citizen who was raised in Canada, Pakistan and Afghanistan, where he was captured in July 2002 when he was 15 years old. He was sent to Guantánamo in October 2002 and held without charges until November 2005. Mr. Khadr is charged with "murder by an unprivileged belligerent' for his role in a firefight in an Afghan battlefield in which an American soldier was killed. According to his lawyers, Mr. Khadr was held for 40 months in solitary confinement, and was subjected to torture and abuse in U.S. custody both in Afghanistan and Guantánamo.
Despite his youth, he has been treated as an adult since his capture. The commission hearing today was no exception. The only contact he has with adults is with his attorneys and other adult prisoners who are facing charges before military commission.
Nothing is Normal
The presiding officer, Marine Col. Robert Chester, seemed more disturbed by the fact that he was not given a heads-up than by hearing Mr. Khadr’s allegation of ill treatment. He turned to the defense for evidence regarding this allegation and asked whether the defense was ready to present evidence. In a normal court of law, the judge would immediately inquire about the conditions of confinement and request an answer from the prosecution or the detaining authority. But in military commission proceedings, nothing is normal and the only certain thing is that the rules of today might not be the rules of tomorrow.
One of the most fundamental flaws in the system of military commissions is the uncertainty of the procedures and the lack of clarity with regard to the governing legal authorities.The defense has expressed its frustration with the procedural and security hurdles which severely inhibit their ability to carry out the defense. Military defense attorney Lt. Col. Vokey aggressively protested and complained about lack of information from the detaining authorities regarding the treatment and confinement of Mr. Khadr.
Since the decision of the Supreme Court in , which held that the detainees had the right to access the courts, many lawyers have started to represent detainees held in Guantánamo and file writs of habeas corpus on their behalf. Most attorneys who now represent less than half of the 490 detainees do it on pro bono basis despite the unbearable restrictions. These restrictions include limited access to the prisoner and compliance with rigorous rules governing client visits, note taking with a client, and the use of a secure site for review of all notes from client interviews. For example, all lawyers' notes have to be delivered from Guantánamo to a secure site in the Washington, D.C. area, which could take a long time before they are returned to the lawyer.
At one point in the proceedings Col. Chester directly addressed Mr. Khadr in an attempt to influence his decision to threaten boycotting the proceedings. This happened just after Mr. Khadr’s attorneys explained that he did not want them to proceed before looking into the issue of solitary confinement. The presiding officer tried to convince Mr. Khadr to put his threat of boycott aside until the defense presents evidence regarding his allegation by Friday. Col. Chester said to Mr. Khadr: "I would like you to allow us to do that if you will."
That sparked an immediate response from his civilian counsel, Muneer Ahmed from Washington College of Law at the American University, who noted his protest over the presiding officer’s inappropriate intrusion into the lawyer-client relationship. Indeed, Col. Chester’s tone and the way he addressed Mr. Khadr raise serious concern about how the presiding officer conceived the due process rights of the prisoner and the lawyer-client relationship.
Finally, defense counsel Ahmed raised the ethical conflict and problem in allowing the proceedings to continue while Mr. Khadr is asking the attorneys not to do so. Nevertheless, the presiding officer decided to continue with the proceedings and suggested to the attorneys that if they have an ethical problem they should withdraw from representation.
If in fact the presiding officer will hear evidence regarding the treatment of Mr. Khadr and his conditions of confinement at Guantánamo, it will be the first time a military commission agrees to such proceedings. Only once before has the issue of conditions come up during the military commission proceedings, when D.C. District Court Judge James Robertson heard Salim Hamdan’s case and issued an order regarding his transfer from solitary confinement ().
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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.