The Guantánamo Military Commissions Continue to Undermine Basic Principles of American Justice
Observers walking into the viewing gallery of the Guantánamo Bay military court are met with a number of signs depicting prohibited behavior. One of them cautions against any manner of “visual enhancement devices” and features a calm, smiling woman undisturbed by the constitutional and human rights violations transpiring a few feet away. This mundane image serves as a symbol for what we as a society must avoid: normalizing the due process violations and excessive secrecy that have marred the military commissions since their inception.
This reminder is particularly pressing given President Trump’s campaign promise to “,” and Attorney General Jeff Sessions’ comment that Guantánamo is “” to send terrorism suspects. Sending more prisoners to Guantánamo for detention or military trial would reverse the trend set by Trump’s predecessors. Former presidents Bush and Obama transferred 532 and 198 detainees, respectively. Forty-one are still held on the base. No new prisoner has been slated for military prosecution since 2013.
Yet denial of due process remains in full force. Of the detainees left in captivity, only 10 have been charged with a crime. The rest linger in the limbo of indefinite detention. For those who have been charged, the stacked deck of the proceedings creates a set of fundamental fairness violations unique to the military commissions.
For instance, classification rules can prevent defendants, and sometimes even their attorneys, from viewing the very evidence the prosecution holds against them. The commission’s evidentiary standards also offer less protection than federal courts, such as relaxed restrictions on the admission of hearsay evidence. The jettisoning of traditional safeguards has particularly troubling implications for the commission’s capital cases because, as federal constitutional law has long recognized, when death is on the table, extraordinary measures must be taken to protect against error.
In an example of the protections at stake, this week’s pre-trial hearings for the five defendants accused of planning the September 11, 2001, attacks included arguments on a principle central to fair and effective representation: the attorney-client privilege.
Air Force Capt. Brian Brady, counsel for defendant Walid bin Attash, began with a motion seeking information on intelligence agencies’ surveillance of the defense team. The defense described a long-running pattern of infringement on the attorney-client privilege in these proceedings, including the of surveillance devices disguised as smoke detectors in attorney-client meeting rooms, and the by the FBI into defense teams.
As James Harrington, the lead attorney for defendant Ramzi bin al Shibh, reminded the judge, these allegations are not mere speculation: He uncovered an FBI informant, within his team, who passed privileged attorney-client communications to the agency. In a similar vein, another attorney for defendant bin Attash, Cheryl Bormann, argued a motion related to their detection of an unknown individual who was not on the defense team but had access to client files housed on a supposedly secure shared network drive.
These violations would not be tolerated in federal criminal trials. The privilege recognized between client and attorney, and the trust it creates, is the fulcrum on which effective representation rests. When it is violated, the attorney-client relationship suffers, and the exchange of information and ability to provide adequate representation are impeded. In a capital case, the trust between client and attorney is even more crucial, given the need for the attorney to investigate and compile what’s known as “mitigation” evidence, reflective of the client as a whole person.
As Brady, counsel for defendant bin Attash rightly noted, part of the attorney-client relationship consists of building a foundation of trust so that a client will divulge the “most private, most secret, and most terrifying moments of their life.” Building trust with a client is challenging enough without that client believing it is possible that U.S. government intelligence agencies are monitoring communications to his attorney. As attorneys at the ACLU’s Capital Punishment Project and John Adams Project know firsthand, the crafting of a complete and compelling mitigation narrative hinges on a client’s faith in his attorney.
This week’s hearings reiterate the danger of allowing the deeply flawed military commissions — and Guantánamo itself — to become acceptable in the national consciousness. Future generations will not judge these proceedings on our best intentions or aspirations. They will instead consider the concrete measures we took to ensure that principles of fairness and justice were preserved.
As President Obama just last year: “If we don’t do what’s required now, I think future generations are going to look back and ask why we failed to act when the right course, the right side of history, and of justice, and our best American traditions was clear.”
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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.