There’s a telling scene near the beginning of , Jane Mayer’s indispensable chronicle of the Bush Administration’s descent into torture and criminality. Shortly after the September 11 attacks, CIA Director George Tenet was advised that that CIA had followed two of the hijackers into the United States in 2000, and then dropped the trail — without alerting the FBI to their presence in the U.S. “Upon hearing the news,” Mayer reports, Tenet “reeled back in his chair and groaned. ‘We’re fucked,’ is all he said.”
Well, yes. But who? Certainly not Tenet: after failing to detect one grave threat, then helping to “slam dunk” another (manufactured) one onto the American public, and a . But what about the rest of us?
There’s a sense in which this week’s lamentable proceedings in the military commission trial of Salim Ahmed Hamdan can be traced to the CIA’s pre-9/11 failures. It was the 9/11 attacks that provided the impetus for Cheney and Tenet and Rumsfeld to abandon our nation’s historic commitment to human rights and the rule of law and steer a course for “the dark side.” It was in response to the attacks that those high government officials enlisted unscrupulous lawyers to disfigure the Constitution and international law and, in Mayer’s words, to make “torture the official law of the land in all but name.” And once the United States had become a regime of torture, there was a need to devise a legal system in which the fruits of that systematic cruelty could be used in court — while its methods were concealed from the public.
Hamdan’s trial is the nation’s first war crimes tribunal since the Second World War — a momentous and historic event that, after its first full week, left observers scratching their heads. After seven years of false starts and legal setbacks, with the entire world watching to see if the United States can deliver justice to terrorism suspects, the U.S has chosen to inaugurate these commissions by targeting a marginal figure — and a cooperating witness, to boot. All week, investigators from the FBI and the military took the stand and described Hamdan as "polite," "cordial," "cooperative," "civil," and even "amiable." In dozens of interrogations with dozens of investigators, Hamdan willingly described his role as a driver for Osama in Laden, drew maps of Bin Laden’s safe houses and training camps, took agents on tours of those locations in Afghanistan, identified scores of Al Qaeda figures from photo arrays, and provided evidence that was directly helpful to the FBI in its investigation of the USS Cole bombing. Each of these witnesses testified that there was no evidence whatsoever linking Hamdan to the planning or execution of any terrorist attack.
At no time during any of these interrogations was Hamdan — a man with a fourth-grade education — advised that his cooperation and assistance could be used to incriminate and punish him — a circumstance that would exclude all of those statements from any civil or military trial in the U.S. In defending the military commissions’ elimination of the right against self-incrimination, the Bush administration and its defenders have made the claim that our soldiers cannot be expected to provide Miranda warnings in the heat of battle. But that hypothetical is a complete and utter fallacy. Hamdan was not interrogated on a battlefield or in a cave, but in an air-conditioned trailer, thousands of miles and many months removed from any battle. In one particularly poignant instance, Hamdan sat on the floor with his Arabic-speaking FBI interrogators, wept with gratitude after being allowed to call home for the first time, wished the agents a safe journey, and hugged them as they departed. Six years later, the information he shared with those investigators is being used to convict him.
There were glimpses of “the dark side” in this week’s testimony, particularly on Friday, when Hamdan’s lawyers introduced a classified document confirming that on the very same day that Hamdan had provided helpful information to FBI agents, he was awoken at midnight by an “agency” that could not be named, and subjected to interrogation techniques that could not be described. It appears that this entire trial will be conducted without acknowledgment that the CIA even exists. This is a convenient legal fiction for the government, allowing prosecution of the alleged crimes committed by the detainees, without any discussion of the crimes committed against them.
The final witness of the week provided one of its most memorable lines. FBI Special Agent George Crouch was asked by the defense whether he would be surprised to learn that while Hamdan was standing trial at Guantanamo, other more senior members of Bin Laden’s security detail, including his chief bodyguard who had facilitated his escape fter 9/11, had been released from Guantánamo without ever being charged. Crouch responded: “Nothing surprises me any more.”
I know the feeling.
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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.