Yesterday, the man accused of planning the 2000 U.S.S. Cole bombing before the world for the first time, nine years after his capture, at a military commission hearing at Guantánamo. I was there to observe the proceedings for the ACLU.
The arraignment of (pronounced al-NAH-shiri) was the beginning of what will likely be a years-long death penalty trial before a military commission. Mr. al-Nashiri wore a white smock and trousers (similar to a doctor's scrubs, just a bit thicker and baggier).
Mr. al-Nashiri’s attorney told the court that the start of these proceedings meant Mr. al-Nashiri finally has something concrete in his life. But it seems that very little in this Guantánamo military commission is truly concrete. Speaking from the bench, the judge himself, Army Col. James Pohl, admitted some of the key uncertainties and problems that threaten a fair trial. Judge Pohl has never tried a death penalty case. When asked about — the portion of a death penalty trial in which the defense gets to argue why the accused should not be put to death — Judge Pohl stated he needed to research it more.
More fundamentally, Judge Pohl recognized that in Guantánamo military commissions, “there are gaps not present in other more developed systems.” The for the military commissions (a 202-page document) were only issued on Monday and are untested. There has been only one contested Guantánamo military commission trial to date, and little precedent to follow. This stands in stark contrast to the 200-plus years’ worth of guidance and precedent available in the federal criminal justice system.
Perhaps most worryingly, Judge Pohl stated that it was his job to follow the Guantánamo military commission rules and law even if they lead to an unreliable result. We are tinkering with the machinery of death and even with a mechanic like Judge Pohl, who comes across as fair minded, justice is unlikely because the tools are inadequate and the system is unfair.
The hearing yesterday would have taken mere minutes in federal court, but stretched for hours here in Guantánamo. Time and resources were diverted to issues that would never need to come before a federal judge because federal courts resolved them long ago. The defense told Judge Pohl that the government was reading attorney-client mail, which federal courts have long held is unquestionably wrong. Judge Pohl ruled the government had to stop doing so — in this case only — though only after over an hour of argument and the testimony of the military lawyer who has been overseeing the reading of the mail to date.
The military commission spent significant time on whether or not the defense has to tell the government why it needs an expert to work on the case, thereby tipping off the prosecution as to a possible line of defense. The judge left that question for another day, even though it is a long-established practice in federal courts that the defense can submit such requests to the judge without having to reveal them to the government.
Down the line, the questions will get much more serious. Will the CIA finally be forced to reveal where it held Mr. al-Nashiri for four years and what it did to him? Will coerced evidence be entered into the record? Will hearsay even two or three times removed from the original source be used against Mr. al-Nashiri? It should go without saying that a trial tainted by secrecy, evidence that is the fruit of cruel treatment, and unreliable hearsay, cannot be fair — yet under the military commissions’ rules, that may be the trial Mr. al-Nashiri gets.
The prosecution asked for a trial date of February 2, 2012, less than three months from now. The judge and set the trial date for November 9, 2012. A key reason for the delay is that the government has failed to turn over evidence the defense argues that it needs to prepare for trial. The next fight will be over just how much of this material, which includes information about the CIA’s torture of Mr. al-Nashiri, the government must provide to the defense team.
If past experience is a guide, the government will try to act like Mr. al-Nashiri's never happened. But revisionist history has no place in any judicial proceeding. We know already from a released in 2009 that Mr. al-Nashiri was abused and tortured. He was waterboarded. He had a loaded gun put to his head. He had a drill revved near his face and threats to harm his family. All of that is relevant to any statements Mr. al-Nashiri has given while in U.S. custody and to the decision whether he will receive the death penalty. Only with full disclosure of the details of torture and the identities of all witnesses to and perpetrators of torture can this death penalty case even approach fairness. The judge will start to hear some of these issues in January 2012.
The of this Guantánamo military commission will be enormous, particularly because the government has chosen to seek the death penalty. The best prediction of the cost of the defense alone — let alone the costs of the prosecution, and of flying a planeload of court personnel to Guantánamo for each hearing — is in the millions. Any death penalty case is expensive; a Guantánamo military commission, with all the delays that will ensue because of those “gaps” Judge Pohl identified in what he referred to as a “unique” system, will be exorbitantly so.
Other costs may be even more profound. Families of the victims of the U.S.S. Cole bombing also attended the hearing. Afterwards they spoke of their hope for justice, but the justice they seek must be the product of a fair and open trial. Those families should not have to sit through novel proceedings that are virtually being created from scratch when a tried, tested, and trusted alternative exists: federal courts.
Yesterday, we had a preview of all that is wrong with trying Mr. al-Nashiri's case before a Guantánamo military commission, and the challenges to come. Justice — for the U.S.S. Cole families, for Mr. al-Nashiri, for all of us — demands that we be in federal court.
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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.