On Wednesday, we discovered that the government may actually be more intent on covering up its own criminality than in establishing Hamdan's. Or perhaps the prosecution simply recognizes that an acquittal is virtually inconceivable in any military commission trial. Whatever the reason, the government demonstrated that it would rather lose the testimony of a key witness than allow Guantánamo's secret interrogation regime to be exposed to public or judicial scrutiny.
At issue was whether Robert McFadden, a Special Agent of the Naval Criminal Investigative Service — the only government witness who purports to have heard Hamdan reveal that he swore bayat, or allegiance, to Osama Bin Laden (Hamdan says he didn't) — would be permitted to testify. But it was soon apparent that far more was at stake than the testimony of a single witness. The dispute threatened to expose a very different Guantánamo than the one portrayed in the government's case.
Hamdan and his lawyers have long contended that the prosecution's Guantánamo — where polite, well-spoken FBI and military investigators bring McDonald's French fries to detainees and conduct professional, non-coercive interrogations — is at best a small part of the story. Wholly absent from the government's case are agents of "unnamed" agencies who wake detainees in the dead of night and apply interrogation techniques long banned by civilized nations.
For years, Hamdan's lawyers have demanded that the government turn over records not only of the polite interrogations conducted by polished prosecution witnesses, but of all interrogations of Hamdan, so that the court could properly evaluate whether his statements were provided voluntarily. Hamdan alleged in earlier proceedings that he himself had been exposed to sleep deprivation and even sexual humiliation by a female interrogator — allegations that government lawyers ridiculed. But Hamdan was telling the truth.
Although the government has had five years to collect these critical records, Hamdan's lawyers received many of them just days before trial, and others not until after the trial had begun — a truly shocking violation of discovery rules made all the more remarkable by the stakes of this case. We learned today that one of those documents includes a female interrogator's account of her sexual humiliation of Hamdan. Others describe his being woken repeatedly in the night and moved between cells — including the night before his interview with Special Agent McFadden. On Monday, the military judge had instructed the government that, as sanction for its failure to provide those critical documents in a timely manner, McFadden would be barred from testifying — unless the government could demonstrate convincingly that Hamdan had not been mistreated.
But the government did no such thing, nor did it really even try. It did not present a single witness who was involved in Hamdan's late-night interrogations, or even in his detention. Quite simply, the government preferred to risk losing a witness who, in an ordinary proceeding, would be deemed absolutely critical to its conspiracy charge against Hamdan, than be forced to put CIA and military intelligence officers on the stand to testify about their routine abuse of detainees.
Although we remain in the dark about the damning details of Hamdan's treatment by intelligence officers, we did hear some of the more prosaic details of Hamdan's camp disciplinary record, as detailed meticulously in the "military police desk blotter." Hamdan, we learned, had become "aggressive" and "outraged" and had used "derogatory language towards guard staff" on one occasion when he was denied a soccer ball — presumably when he was living in communal housing prior to his transfer into solitary confinement. On a few occasions Hamdan was discovered with "contraband," begging certain obvious questions and reminding me, unavoidably, . One entry noted a "positive behavior status report" (evidently a good thing) for which Hamdan was rewarded, heartbreakingly, with two family photographs. Even Guantánamo's small kindnesses somehow manage to invoke its cruelty.
Notwithstanding their complete failure to explain why Hamdan would have been deprived of sleep the night before a critical interrogation, government lawyers insisted that there should be no sanction: to exclude testimony, the prosecution contended, would be to "cast sort of a dark cloud over the agents and those who worked with the detainees." But this is exactly backwards. The "dark cloud" has been hovering over Guantánamo for years. It was Donald Rumsfeld who, as early as December, 2002 for use on detainees here. It was the government that turned the Guantánamo detention facility into a virtual laboratory for cruel and coercive interrogations — and that now insists on being able to prosecute detainees while keeping that cruelty under tight seal.
It was left to one of Hamdan's civilian lawyers, Seattle attorney Harry Schneider, to sum up the feeling of many observers of this sad spectacle. "It's not a happy day," Schneider argued, when Mr. Hamdan's testimony must be considered more credible than the testimony of government agents. "It's my country, too."
At Guantánamo Bay, sometimes we need that reminder.
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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.