FORT MEADE, Md. - Ninety miles off the coast of Florida, a government experiment continues to go horribly, and predictably, wrong.
Watching last week's pretrial hearings in the Guantánamo military commissions prosecution of the men accused of orchestrating the 9/11 attacks, it's clear that the commissions continue to be an ineffective, unjust, and unconstitutional mess.
Rules and restrictions--whether imposed by the government or the commission itself --continually handcuff the defense, making it impossible for the attorneys to meaningfully defend their clients.
Much of the controversy last week centered on a protective order imposed by the military judge at the request of the prosecution and over the objection of the defense (and the ACLU). Among other things, the protective order deems classified all information about the CIA's torture and black-site detention program – including the defendants' personal knowledge and experiences of the torture to which they were subjected, as well as information that is publicly available in news accounts and investigative reports. On that basis, defense lawyers say, it could bar them from discussing information they obtain about the torture program with their clients, making it impossible for the accused to participate in their own defense.
Those issues led to Alice-in-Wonderland-like discussions in court.
For example, if a member of the defense team interviews a witness in another country and that person discusses information related to the CIA's torture program, defense attorneys fear they cannot share that information with the accused, even though the defendant may have experienced the torture firsthand or the information could contribute to his defense. Complicating matters more, defense lawyers said it's unclear to them whether the defense must conduct witness interviews overseas in "secure areas" if they believe torture will come up.
David Nevin, Khalid Sheikh Mohammed's lawyer, said he had no idea what to do if an overseas witness surprised his defense team and began discussing torture. "What do you do with it?" Nevin asked Judge Pohl. "You are standing there in a foreign country. You are nowhere near a SCIF [a secure government facility]. And not to mention -- what do you do next? The person… gives you a fact about enhanced interrogation techniques, what do you do?"
Defense lawyers say the protective order is so ambiguous that they are unsure if they can even discuss with their clients publicly-available materials, such as a New York Times article or The Constitution Project's , which describe the government's torture program. James Harrington, the attorney for Ramzi bin al Shibh, called these barriers "the height of silliness. The whole world knows this information." Constantly, the defense painstakingly tried to determine what public information (or information third parties have) is deemed classified and how they would have to handle it under the protective order. "There are always gremlins in this language," Nevin told Judge Pohl.
What the protective order restricts is also critical to the defendants' rights under the United Nations Convention Against Torture. In another motion, counsel for four of the defendants said they could not sign a memorandum of understanding agreeing to abide by the protective order because they could be under the international human rights treaty (which the U.S. championed and signed) to complain about their torture. The rub, however, is that if defense counsel do not sign the memorandum of understanding, the government will not turn over classified evidence it plans on using to prosecute the defendants.
These and other restrictions make it virtually impossible for defense counsel to meaningfully and ethically represent their clients. As Cheryl Bormann, attorney for Walid bin Attash, told military judge Army Col. James Pohl, "Torture will be central to mitigation," meaning that the fact that these men were tortured could determine whether they are subjected to the death penalty. Nevin stated the defense position succinctly: "It's not fair to execute a man when you have not given him everything in the government's possession bearing on whether or not he should be executed."
Compounding the unfairness is the fact that the CIA carried out the torture program, "owns" the information according to the government's classification system, and is being allowed under the protective order to keep its crimes secret from the public and the defendants.
"The CIA controls that [information], and that is fundamentally unfair," said Nevin. "That's not right in a case where, at the end of the day, if it all goes the way the government wants, they will be given permission to kill Mr. Mohammad."
The restrictions on effective representation — and fair trial rights – extend beyond the $12 million courtroom especially constructed for this trial, which is .
Defense attorneys believe their privileged, confidential meetings with their clients have been through listening devices disguised as smoke detectors. They also told the court that there isn't an effective and secure classification review process for their privileged materials – and that those materials could be improperly accessed by government agencies. In April, the chief military defense counsel ordered all Guantánamo defense attorneys to because the Defense Department network was not secure; the issue still .
The 9/11 trial is the most important in the nation's history and yet the U.S. government is undermining its legitimacy by trying it in these experimental commissions, and compounding the problems with secrecy-based restrictions that hamstring the defense. Unlike the commissions, have long-standing experience in trying terrorism cases and while the federal criminal justice system is by no means perfect, it certainly has more experience in protecting the rights of all litigants. The American public, the 9/11 victims and their families, and the accused — no matter how heinous the crime of which they are accused — deserve better. The trial of these defendants could have been an opportunity to showcase America's confidence in our criminal justice system and the due process and fair trial protections it affords even those accused of the worst acts – because those are our strengths.
Unfortunately, the U.S. government, with Congress's and two presidents' approval, went another way, and history's judgment will not be kind.
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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.