Editor's Note: You can listen to a podcast of Jamil discussing Thursday's hearing at Guantanamo here.
After close to five months of uncertainty regarding the future of the military commission system, hearings resumed today when . That's right, his third arraignment. Clearly, the wheels of injustice turn very slowly at Guantanamo.
Khadr, who is now 21 years old, was only 15 when he was captured by U.S. forces in Afghanistan. New charges against Khadr were filed for the third time last month after the old charges were thrown out in June by a military judge who ruled that the commission lacked proper jurisdictional authority to prosecute him.
The military judge, Army Col. Peter Brownback, ruled that Khadr had not been designated as an "alien unlawful enemy combatant" as required under the Military Commission Act signed into law by President Bush in October 2006. Khadr is accused of murder, attempted murder, conspiracy, material support and espionage. Most of the charges relate to a 2002 incident in Afghanistan in which Khadr is alleged to have thrown a grenade, killing one soldier and wounding another. Khadr is one of only four captives at Guantanamo who were so far charged. Over 320 other prisoners continue to languish indefinitely without charges and no meaningful access to the courts.
Today's hearing attracted close to 30 reporters, including several Canadian reporters and a Russian television crew that was broadcasting in Arabic! In addition to the five non-governmental organizations that have been granted status as permanent observers - the ACLU, , , and the . In what appears to be an attempt to counter the largely critical contingent of human rights observers, the Pentagon invited three other groups to observe the military commission hearing: the , the and the . As a matter of courtesy, the Canadian government sent a representative to observe the hearing.
Guantanamo's tent city.
A striking difference today from previous military commission hearings was the ongoing erection of a just hundreds of feet away from the current Military Commission building. That building - the former home of a military dentistry - has become too small to accommodate the military commission staff. The Department of Defense had attempted to build a grandiose, $125 million court complex instead, but a successful ACLU lobbying effort stymied the plan, so the tents will have to do.
Khadr appeared relaxed during his hearing today, but looked much older than his actual age. He wore a white Afghan-style dress and had a black religious cap over his head. He agreed to be represented by a military defense lawyer, Navy Lt. Cmdr. William Kuebler, who was joined by Department of Defense civilian attorney Rebecca Snyder and Canadian lawyer Nathan Whitling.
To give more legitimacy to the proceedings, the prosecution - led by Marine Maj. Jeffrey Groharing - was joined by Assistant U.S. Attorney John Murphy. The prosecution was prepared to present its evidence regarding the designation of Khadr as an "alien unlawful enemy combatant" and said that it actually prepared documents and prepared as a witness an FBI agent who the defense could not depose. Of course, the prosecution was eager to move ahead with this trial, assuming that a slam-dunk determination by Col. Brownback that Khadr is indeed an "alien unlawful enemy combatant" was forthcoming - a ruling that would set a good precedent for subsequent cases that come before the military commission. Earlier in the week, however, at a non-public conference, Col. Brownback decided not to hear constitutional and international law arguments regarding the jurisdictional question.
Mindful of a pending motion before the Court of Appeals in the D.C. Circuit, the defense team said they would reserve the right to bring substantive challenges at an appropriate time against the jurisdictional authority of the military commission to try Khadr, and emphasized that while they acknowledge the jurisdiction of the commission, they disagree and have objections which relate to his having been a child when he was captured and held as a prisoner of war.
Finally, and perhaps the most interesting part of today's hearing, was the defense's voir dire inquiry: their attempt to question the impartiality of Col. Brownback. Col. Brownback was at times impatient with the questions presented by Lt. Cmdr. Kuebler. He was asked about a , another prisoner held at Guantanamo. The June 2006 decision struck down the old system of military commissions; during voir dire, Col. Brownback said he did not think that the Hamdan ruling found the military commission illegal. He instead stressed that the decision found that according to , the President had to go to Congress to get authority for the military commission.
His response was certainly not surprising considering his commission's legitimacy and his personal involvement in the old system was at stake. Col. Brownback also gave an unusual answer when he was asked what he knows about al-Qaeda. He said: "al-Qaeda is an organization or a group dedicated to the spread of Islam." It is quite disturbing that one would equate the spread of Islam with a group like al-Qaeda, which has been classified by almost the entire world community as a terrorist organization responsible for horrific crimes.
Finally, Col. Brownback disclosed that he is friends with General John Altenburg, the convening authority of the military commission system since its inception in 2004. Despite the defense demand that he be disqualified for that reason alone, Col. Brownback decided to deny the request and found that he has no bias and is qualified to preside over Khadr's trial.
Today's hearing was nothing more than another example of the lack of legitimacy and competency of the military commission system. As long as the independence and impartiality of the system is called into question, we will essentially remain at square one. Our only hope for fair trials and justice consistent with U.S. and international law lies in Washington, where Congress must find the political courage to stop this failed legal experiment.
Epilogue:
As part of the Pentagon's new ground rules regarding the status of human rights observers, we were denied access to the media center shortly after the hearing ended. As a result, we were denied access to critical information shared by the defense team with the press at a press conference. The defense lawyer revealed that the government has for years had secret evidence that could help Khadr defend himself. Prosecutors notified Khadr's military lawyer two days ago of the existence of "potentially exculpatory evidence" from a U.S. government eyewitness to the battle in Afghanistan that resulted in Khadr's capture in 2002.
Learn More About the Issues on This Page
-
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.