Part II: Hamdan v. Rumsfeld, the Military Commissions Act, and Boumediene v. Bush
The Hamdan case, which reached the Supreme Court in 2006, involved two critical and distinct legal issues. , alleged to have been Osama Bin Laden's driver, had been charged with "conspiracy" in a military commission and had filed a habeas corpus petition challenging the legality of the commission system. The threshold question was whether the Court had jurisdiction over Hamdan's case - or any Guantanamo case, for that matter. The Bush administration argued that the (DTA) had stripped federal courts of jurisdiction over all petitions filed by Guantanamo detainees. Hamdan, in turn, argued that the DTA foreclosed only future challenges, and that, in the alternative, any such revocation by Congress of the right to file habeas petitions would itself be an unconstitutional suspension of the writ.
The second issue in the case involved the legality of the president's Military Commission system. Hamdan contended that the president lacked the unilateral authority to create a military trial system out of step with U.S. and international law and inconsistent with the . The administration claimed that the president's wartime authority as Commander in Chief granted him the power to establish military commissions to prosecute detainees in the "war on terror."
The was a stunning repudiation of the administration's legal theories. First, the Court held that its jurisdiction over pending cases was intact, and that the DTA applied only prospectively - leaving for another day the question whether the Constitution would permit Congress to eliminate habeas corpus rights for Guantanamo detainees. Second, the Court held that the president had exceeded his authority by concocting a military commission system that disregarded the minimum safeguards required by the , and ordered that the military trials be halted.
The decision severely undermined the edifice of nearly all of the administration's post-9/11 legal claims, including its claim that it could eavesdrop on American citizens in contravention of the .
However, the basis of the Court's opinions in both Rasul and Hamdan rested on the administration's disregard of Congress - not of the Constitution. And so, following the Hamdan rebuke, the administration persuaded a compliant Republican Congress to enact the disgraceful Military Commissions Act (MCA) of 2006. The MCA, passed in the run-up to the midterm elections, purported to overrule both the Rasul and Hamdan decisions: Rasul, by expressly revoking the right of Guantanamo detainees to bring habeas corpus petitions, and Hamdan, by authorizing a military commission system nearly identical to the one struck down by the Supreme Court.
And so, after four years, the legal challenges were seemingly back to square one. The military commission trials recommenced - only to be halted, yet again, when the commissions' presiding officers unexpectedly declared that the new procedures failed to comply with the MCA.
Of greater significance, the administration once again sought the dismissal of all Guantanamo habeas petitions then pending in the lower courts. In , the Court of Appeals for the D.C. Circuit, in a 2-1 decision, agreed with the administration that the MCA had stripped Guantanamo detainees of the right of habeas corpus - and ruled, for the first time, that the Constitution offered no protection to the detainees against Congress's suspension of the writ. The same court held that the detainees should contest their detention through the Combatant Status Review Tribunal (CSRT) process - with the option for a limited circuit court review if they were dissatisfied with the results.
At first, the High Court declined to hear the detainees' appeal in Boumediene - preferring to wait until a lower court had reviewed the CSRT process. But in June, the Court announced that it would hear the appeal after all. (Many observers believe that the Court was influenced by the affidavit of a military reserve officer who participated in the CSRT process and . This fall, the Court will finally consider whether the Guantanamo detainees have a constitutional right to challenge their detention through habeas corpus petitions.
If the Court reverses the D.C. Circuit and upholds the historic right of habeas corpus against congressional interference, the Guantanamo endgame will enter its final phase. Once habeas is restored, the government will be compelled, at long last, to provide evidence to a neutral court supporting its assertion that the detainees are, uniformly, "enemy combatants." And if the quality of that evidence resembles the government's submissions in the CSRT process, no judge will conceivably permit the indefinite detentions to continue.
But the administration is unlikely to allow such a public dismantling of its claims that Guantanamo houses the world's most dangerous terrorists. If yet another Supreme Court loss seems likely, watch for renewed White House attempts at a political solution to the Guantanamo mess.
Read Part I of "Guantanamo: The Road to Closure" >>
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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.