(Originally posted on .)
Yesterday was day two of pretrial hearings in the case of Toronto-born Omar Khadr, who has been in U.S. detention for a third of his life, since his capture at age 15 in Afghanistan. The hearing was sidetracked by Khadr’s refusal to come to court because of a medical condition and marred by the military judge’s lack of concern—even though, according to his lawyers, he's in significant pain.
The chair usually occupied by Omar Khadr was conspicuously empty when yesterday’s hearing began. Khadr’s lawyer Barry Coburn announced to the court that Khadr was experiencing “extreme physical pain” in his left eye—which was blinded by shrapnel in the firefight when he was captured. Khadr was given eye drops and originally said he intended to attend the hearing, but when he was to be transferred from the prison to the courthouse in the back of a windowless van, guards required him to wear “eyes and ears,” tight-fitting blackout goggles and sound-blocking earmuffs. ButThe blackout goggles pressed painfully against his eyes, so he refused to ride in the van with them. His lawyers said he’d never been required to wear the goggles and earphones in the van before Wednesday.
Khadr has attended every military commissions hearing in his case, until today. He’s usually attentive during hearings and hasn’t claimed medical reasons for not participating before, according to his lawyers.
The judge, U.S. Army Col. Patrick Parrish, appeared utterly unsympathetic and announced he wouldn’t second-guess the military’s changed security procedures. Judge Parrish announced the hearing would continue without Khadr—until he realized that Khadr wasn’t properly read his rights when he was arraigned in 2007. No judge had ever advised Khadr of his right to attend hearings and the consequences of not attending when hearings proceed without him, as required by both the old rules manual and the new rules released Tuesday night. We recessed until afternoon, to give Khadr’s lawyers an opportunity to persuade him to come to court.
Wearing the white uniform designated for compliant prisoners, Khadr shielded his eyes as he entered the courtroom for the afternoon session. Khadr hunched over with his head in his hands throughout the hearing, and appeared to be crying into balled-up tissues at times. Dr. Stephen Xenakis, a retired Brigadier General and expert witness for the defense who examined Khadr during the morning recess, later explained to reporters that Khadr has a serious infection aggravated by shrapnel in his eyes. Dr. Xenakis said Khadr’s condition is urgent and requires immediate medical attention.
Judge Parrish showed no concern for Khadr’s condition and flatly rejected defense arguments that his eye pain, exacerbated by the blackout goggles, prevented him from participating in the hearing. Coburn argued that Khadr’s medical condition is “debilitating and extremely painful” and affected his ability to focus on and participate in his own defense, but the judge was unmoved. Later, Coburn remarked to reporters, “you can’t have a fair trial unless the defendant can participate actively.”
Coburn has a good point. An accused’s ability to participate is important in any criminal case, but was particularly crucial yesterday as the court heard testimony from FBI Special Agent Robert Fuller about interrogations he conducted of Khadr at Bagram. Defense lawyers have asked the court to exclude self-incriminating statements they say Khadr made as a result of torture and other abuse.
It seems critical that Khadr be able to concentrate on Fuller’s testimony, so that he can help his lawyers challenge Fuller’s assertion that Khadr was “happy” and “eager to talk to us” during interrogations at Bagram.
Omar Khadr’s entire military commissions experience thus far has been a circus spanning several years, 11 lawyers, more than three arraignments and multiple sets of rules since he was first charged in 2004, and it still hasn’t gotten off the ground. Khadr’s military commissions case has been plagued by procedural and legal problems, and today’s events—Khadr’s inability to follow important testimony and the discovery that he wasn’t read his rights at his arraignment—are only the latest examples. As we’ve seen in Khadr’s case, the military commissions are a recipe for endless legal challenges and delay. Enough is enough.
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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.