Friday morning, a determined and defiant (PDF) appeared before the military commission. Escorted by military police holding each of his wrists, al-Bahlul wore a tan prison uniform and flip-flops. He wasn’t carrying his "boycott" sign, which he created back in January 2006 and has held during subsequent hearings. We soon realized that this was the reason for a half-hour delay in the hearing’s start time.
Al-Bahlul then took center stage in a hearing that quickly became a circus. First, al-Bahlul requested the boycott sign, on which he had written a nine-point list enumerating the "political and legal reasons" why he opposes the military commission proceedings against him. The front of the sign had been entered into evidence, but apparently not the reverse side, on which al-Bahlul had written his nine-point manifesto, and no one could produce the original, which he said had been confiscated from him after his last hearing. Al-Bahlul refused to continue without the signed document, saying it would assist him in explaining his position to the judge. Al-Bahlul then rightly pointed out "There should be an administrative regime for the court to find the paper...If such a legal document is lost, what kind of court is this?"
Criticizing the proceedings as being inherently unfair, Al-Bahlul then announced that he refuses to attend any further hearings and will not accept military defense counsel. "I do not have any trust in this legal farce," Al-Bahlul declared. "When it is the final proceeding, just let me know this is the proceeding when the verdict and sentence are announced, and I will show up. For the other sessions in between I will not be present," he announced. He gestured to his stand-by defense counsel, Maj. David Frakt, and said, "Until I hear the final verdict I don’t consider him my attorney." He stoutly added, "I am not going to talk to Major Frakt."
Al-Bahlul also told the new military judge in this case, Col. Ronald Gregory, that because fellow Yemeni Salim Hamdan had recently been convicted and sentenced, he was ready to "do some settling" of the case today to "facilitate things." It is unclear whether he meant he was prepared to plead guilty to the charges today. Al-Bahlul also asked to withdraw his habeas petition — filed on his behalf by his cousin — announcing, "The case which is put forth in the American courts in my name, I am not satisfied with it, and I don’t want it."
Before exiting the courtroom midway through the pre-trial hearing, Al-Bahlul departed with a final salvo: "You can continue your legal play."
After al-Bahlul left the courtroom, the judge appointed Maj. David Frakt defense counsel because al-Bahlul’s departure meant he had waived his right to represent himself. Maj. Frakt told the military judge that he would defend al-Bahlul "in the manner in which he desired to be defended." Afterwards, Maj. Frakt stunned the judge and observers by waiving all future pre-trial motions, including motions related to discovery of evidence, and demanded the right to a speedy trial, announcing he was ready to go directly to trial. Under the military commission’s rules, Maj. David Frakt’s request for a speedy trial could push the trial to start in 90 days.
After the hearing, Maj. Frakt told me he will not mount any defense. Because his client "does not recognize the legality or validity of the proceedings," and believes it is impossible for him to receive a fair trial in a Guantánamo military commission, Maj. Frakt explained, al-Bahlul does not want to have defense counsel do anything purporting to be on his behalf. "He thinks this circus has gone on long enough," Maj. Frakt said.
Al-Bahlul's decision to boycott is, perhaps, only a recognition of what the whole world knows — the military commissions system is designed to arrive at a guilty verdict, regardless of whether evidence was coerced or can be tested, because it lacks fundamental guarantees of fair trials and due process. The government has ensured that the regular rules don't apply, so it can hardly be surprised when criminal defendants refuse to participate in a sham process.
It also comes as no surprise that al-Bahlul rejects the military commission system as unfair. Al-Bahlul’s statement Friday criticizing the legal process as a "farce" is just the latest in a series of accusations of unfairness that have marred the proceedings in the past week.
On Thursday Judge Stephen Henley disqualified Brig. Gen. Thomas Hartmann, the military commission’s Legal Advisor to the Convening Authority, from participation in Mohammed Jawad’s case, citing excessive interference in the prosecution of commission cases (for excellent coverage, see , , and ). Because Brig. Gen. Hartmann pushed for charges to be brought against Jawad, (bringing Jawad "from the freezer to the frying pan, thanks to Gen. Hartmann," according to testimony by the former chief prosecutor on Wednesday), Judge Henley ordered an unprecedented top-level review of the charges against Jawad. This is the second time Brig. Gen. Hartmann has been removed from a military commission case for improper influence, as Judge Keith Allred disqualified him from further participation in Salim Hamdan’s case back in May.
Last week also brought additional testimony by Col. Morris Davis, former chief prosecutor for the military commissions, in Omar Khadr’s case. Col. Davis resigned in last October, . He has testified in Hamdan, Jawad, and now Khadr’s hearings to criticize Brig. Gen. Hartmann’s interference with the prosecution of military commission cases, including pressuring the prosecution to get trials underway before the presidential election. On Wednesday Col. Davis repeated his famous testimony recalling his initial job interview, when the Defense Department’s chief counsel William J. Haynes II told him that the military commissions couldn’t result in acquittals because
Also last week another senior military official (this time a general) came forward to critique Brig. Gen. Hartmann, adding to the taint on the military commissions. Brig. Gen. Gregory J. Zanetti, deputy commander of Joint Task Force Guantánamo prison camps, accused Brig. Gen. Hartmann of .
Rather than providing fair, meaningful justice that reflects American principles, recent testimony in the Hamdan, Jawad and Khadr cases shows dogged pursuit of wins in these cases at all costs. The taint of political pressure and the failure to observe basic constitutional guarantees means that any verdict rendered by the military commissions will be regarded as illegitimate by the American public and overseas observers. This country deserves more than trials rushed to provide an election-year win.
The Office of Military Commissions has a new motto: "Freedom through Justice." Between the taint of political pressure in Mohammed Jawad and Salim Hamdan’s cases and the impending farce of Ali al-Bahlul’s trial, how could this kind of justice possibly not detract from our freedoms?
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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.