As debate rages about the National Security Agency vacuuming up Americans' phone and Internet data, a different form of government surveillance is on the docket here in Guántanamo. This week, at the military commission pre-trial hearings of Abd al Rahim Al-Nashiri, arguments have concerned the extent of the government's monitoring of attorney–client communications and how that monitoring will impact the proceedings.
In recent months, by revelations that the government has maintained audio-monitoring equipment in rooms used for attorney–client meetings and that may have been deleted from the Pentagon computer system. These issues remain live and unresolved as a week of hearings comes to a close—13 years after the attack on the U.S.S. Cole that Al-Nashiri is alleged to have masterminded, and over a decade after he was taken into U.S. custody.
Wednesday in the Al-Nashiri hearing, a witness from the Office of the Chief Defense Counsel (OCDC), Brian Broyles, testified that the defense is still trying to account for hundreds of thousands of defense files—and that the prosecution was somehow granted access (though perhaps only for minutes) to an earlier backup of the network files of all defense teams. Boyles also testified that searches by the government (Individual Search Requests, or ISRs) in response to court, congressional and agency inquiries for specific information—including, perhaps, intelligence agencies—of Department of Defense (DoD) computer systems have for years made no distinctions between prosecution and defense files when running keyword searches on the network. Additionally, Boyles explained that the DoD has been monitoring defense computers—and using search terms related to detainees—without making any allowance for the fact that such searches might reveal the contents of privileged attorney work.
In a press conference at the close of the hearings, Al-Nashiri’s defense attorney, Richard Kamen, said that the military defense lawyers on his team have been prohibited at the direction of OCDC from using their military email accounts or accessing network files until the issues are resolved – because of a concern about the risk of breach of confidential information and of ethical duties to maintain it. The defense has asked that the proceedings be abated until those imperative concerns can be addressed. (OCDC is working with the Convening Authority to modify the computer system and network to solve the problem.) The judge still hasn’t ruled.
Thursday, the facility’s commander, John Bogdan, testified that before he ordered (in late January or early February) the removal of had been secretly installed, the government had possessed the capability to audio monitor attorney–client meetings at the facility’s meeting rooms since at least 2008. It’s unclear if and to what extent the government exercised that capability. To this day, the government maintains video monitoring equipment with significant zoom capability in those meeting rooms.
The defense called the revelations “the perfect demonstration of plausible deniability.”
Moreover, earlier this week during a tour of the courtroom complex, John Imhof, the officer in charge of the Office of Military Commissions–South, told press and NGO observers that officials had recently discovered that the video feed from pre-trial holding cells in which detainees meet with their attorneys at the court complex had, in fact, been recorded for months.
These breaches, taken together, show extraordinary obstacles to the effective assistance of defense counsel at Guántanamo. They cast doubt, to say the least, on the government’s commitment and efforts to ensuring that those tried in the Guántanamo military commissions receive the basic fairness rights that the Constitution and human rights law require in a criminal trial. We expect much more detail on these issues during the military commissions proceedings in the 9/11 cases, which resume on Monday.
Trials—and especially trials like Al Nashiri’s in which the death penalty is at stake—require that defense attorneys be able to maintain the confidentiality of meetings and communications with their clients, as well as their work and any information related to their case strategy. These issues have been raised again and again by defense teams, without an ultimate resolution by the military commission. Boyles’s and Bogdan’s testimony should prompt the court to finally determine these questions on the record.
Since they began, the ACLU has been visiting Guántanamo Bay to report on the systemic flaws in the Military Commissions and call for its closure. As the trials proceed, the cracks in the façade just keep growing.
Learn more about the Guantánamo Bay detention center and other civil liberties issues: Sign up for breaking news alerts, , and .
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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.