I’m writing from Guantánamo Bay, where I’ve been observing pre-trial proceedings in the military commissions prosecution of the 9/11 defendants. Earlier this week, other NGO observers and I had the opportunity to meet for a general discussion with Brigadier General Mark Martins, the Chief Prosecutor of the military commissions. During our meeting, General Martins stated that as many detainees as possible should be tried in military commissions, even as he observed that that Article III federal courts are one of this country’s “crown jewels.” That prompts the question: Why military commissions, and why not federal courts?
Defenders of the commissions often contend that battlefield exigencies justify less stringent evidentiary standards, such as for hearsay, which is information from second or third-hand sources, and which the federal criminal justice system treats as suspect. General Martins argued that the commissions’ weaker safeguards against hearsay are appropriate for statements obtained in the context of armed conflict. But as we know, In response to my question about his anticipated use of hearsay, General Martins said that such evidence would constitute only a “fraction” of the case against the 9/11 defendants; however, he added, it “could be an important fraction.” But the commissions’ weakened protections mean that defendants could be sentenced to death on the basis of hearsay; this hearsay could also shroud the fact that an original statement was obtained by coercive interrogation, making it difficult for defense counsel to challenge the statement on the grounds of involuntariness. These rules present deeply troubling conflicts with federal practice, so — again — why military commissions? One answer is that they were designed to more readily facilitate convictions.
As I learned this week, the flaws in the commission are staggering. For instance, although the presiding judge has recently issued orders that may give defendants more latitude in their ability to speak with medical experts about their torture, the American public’s ability to hear courtroom testimony about that torture is still limited in ways that violate the First Amendment. Another answer, then, to the question, “Why is our government relying on military commissions?” is perhaps that from their inception, they were designed to obscure evidence of torture.
The byzantine restrictions on the ability of defense counsel to effectively represent their clients are another obvious problem. At this week’s hearings, it became apparent that because of the extreme slowness of security clearances for the defense teams, arbitrary deadlines, and the government’s prior interference with attorney–client communications, defense counsel lacked a meaningful opportunity to present mitigation evidence at a critical early juncture. As a result, a high-level military official’s decision to refer these death penalty cases to the military commission is in question. While some of these communication issues have improved, defense counsel are still litigating the reasonableness of the hours in which they have access to their clients. At Guantánamo, visiting hours typically end at 4:00 p.m. on weekdays and are nonexistent on weekends. By contrast, the Metropolitan Correctional Center, a New York City federal jail, permits pre-trial attorney visits 24 hours a day. When Cheryl Borman, counsel for Mubarak bin ‘Attash, confronted the commander of the detention facilities at Guantánamo with that fact, he responded: “What I have here is a detention facility that holds enemy prisoners removed from the battlefield. That's not at all the same as a correctional facility holding criminals.” Except that, as Borman noted, the commander’s facilities hold many individuals who have never been charged with any crimes at all.
A final example from my time here: One defendant, Ramzi bin al Shibh, repeatedly asked for his confinement conditions to be reviewed. Mr. bin al Shibh told the judge that prison guards were keeping him awake at night by making — the government denies this — and his counsel argued that Mr. bin al Shibh has been so sleep-deprived that he’s unable to participate meaningfully in the hearings. This issue has come up previously, and Judge Pohl long-ago ordered Joint Task Force GTMO to stop any sounds and vibrations. Yet Mr. bin al Shibh’s complaints have continued. Explaining this predicament, defense counsel noted that commission rules, unlike federal court rules, prevent Judge Pohl from holding Mr. bin al Shibh’s guards in contempt.
I expected a discussion of alternative remedies and evidence collection to resolve this issue, but in a surprise maneuver yesterday, the government moved to have Mr. bin al Shibh examined for competency to stand trial, which brought dozens of pending motions to a halt. Now, it appears that pre-trial proceedings will resume in February at the earliest. As the ACLU has done since the start of the commissions, we will continue to monitor the proceedings at Guantánamo Bay and will report again once they resume.
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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.