This week I am in Guantánamo Bay observing a hearing in the case of Abd al-Rahim Hussayn Muhammad al-Nashiri (pronounced al-NAH-shiri), the first death penalty case to be tried by military commission. Mr. al-Nashiri faces charges for his alleged participation in the attack on the destroyer USS Cole over 11 years ago. Apprehended in 2002, he was held by the CIA for four years in secret before his transfer to military custody. U.S. officials brutally tortured Mr. al-Nashiri: he was waterboarded, and threatened with a power drill and handgun next to his head. Sadly, this week's pretrial hearing in his case continues to erode the commission's purported commitment to and instead affirms a commitment to Guantánamo's shameful legacy of injustice.
Yesterday, Mr. al-Nashiri's defense team argued motions challenging the jurisdiction of the military commissions and the constitutionality of the Military Commissions Act of 2009 that created this iteration of them. Among the challenges: the act singles out noncitizens for prosecution, which is a violation of the Equal Protection Clause. An American citizen who committed the very same or even worse crimes violating the law of war or threatening national security would be tried in federal court. Chief Prosecutor for the military commissions Brig. Gen. Mark Martins circularly maintained that trial in a military commission was appropriate despite this inequality because of the acts al-Nashiri has committed. Nevermind the presumption of innocence.
Judge James Pohl asked the government whether constitutional rights even applied to Mr. Al-Nashiri and other Guantánamo detainees. Gen. Martins said, unequivocally, "no." His answer, reiterated several times, that Mr. al-Nashiri was not entitled to constitutional protections seemed to confirm that the commissions are set up not for fairness but to guarantee convictions through looser substantive and procedural rules than the Constitution requires.
Mr. al-Nashiri is not the first to be tried in this latest iteration of military commissions, but he is the first defendant in this new version of commissions against whom the government is seeking the death penalty. (There were six capital trials pending in 2008 when President Obama was elected: Mr. Al-Nahshiri and the five 9/11 defendants. Those cases were put on hold and ultimately dismissed after his inauguration, but like Mr. al-Nashiri, the 9/11 defendants have now been charged once more. They will be arraigned on May 5.)
Federal constitutional law has long recognized that death penalty cases are different. When the government seeks the ultimate punishment against a criminal defendant, a court must take extraordinary protections to guard against error. As a staff attorney with the ACLU's Capital Punishment Project, I represent defendants charged with serious, tragic crimes and facing the death penalty in courts across the country. I am no stranger to challenging courtroom environments and public hostility towards my clients. But when I walk into a courtroom, I know that if nothing else, I am armed with the Constitution. The Constitution guarantees that my clients have the right to due process, to be tried by an impartial jury, to confront the witnesses against them, to a speedy trial, and to a reliable capital sentencing proceeding. Most importantly in the case of indigent clients – the only ones the ACLU's CPP represents – defendants are entitled to be equipped with the resources necessary to defend against a death sentence, and to ask for those resources in an ex parte proceeding (in other words, without the prosecution present), so as not to tip off the prosecution about defense strategy. If these rights are not honored at the trial court, I know that my client will be able to challenge constitutional errors on appeal. At the military commission, we seem to have left the Constitution on the mainland.
This week's hearing was also expected to test the circumstances under which military commissions will be held in closed session. Of course, already the sessions are far from open. The few observers granted permission by the government to attend the proceedings in Guantánamo view the courtroom from an adjacent room through soundproof glass. We hear the proceedings via an audio feed with a 40-second delay. The government has deemed any utterance from a defendant presumptively classified, in order to censor damning evidence of torture and brutal interrogation methods. In fact, "classified" has been specifically defined to include any words about past torture or present conditions of confinement at Guantánamo. So, if evidence the government wants to keep from the public comes up, a red light goes off and suspends the audio feed for the observers. This is despite the fact that information about torture in CIA custody is already public, and techniques like waterboarding have been admitted by the government.
Mr. al-Nashiri was set to testify yesterday in support of a defense motion challenging his shackling during legal visits. The motion argued that shackling Mr. al-Nashiri during these meetings retraumatizes him, reminding him of the torture he endured at the hands of the CIA. Retraumatization prevents effective attorney-client communication – a critical factor in any case, but even more so in when someone is facing the death penalty, where defense lawyers must ask about sensitive and highly personal evidence that is essential to their representation of a client and may save the client's life.
In anticipation of Mr. al-Nashiri's testimony, the judge heard arguments from counsel about the procedure for closing the courtroom, and in a first for a military commission, the judge to argue for openness in the proceedings. Ultimately, the judge dodged the issue by ruling that Mr. al-Nashiri should not be shackled when he meets with his legal team. But the issue of open hearings regarding torture and abuse will undoubtedly surface again soon, in Mr. al-Nashiri's case or in the upcoming military commission proceedings against the five alleged 9/11 perpetrators, over which . Torture and abuse should not be covered up, and an important test of these commissions' transparency and fairness will be whether the government is able to censor and keep from the public the torture to which the 9/11 defendants were subjected.
The government is risking the integrity of the possible convictions and death sentences against Mr. al-Nashiri and the five men accused of participating in the 9/11 attacks with this untested and unfair system of justice, where the Constitution may not apply and where the proceedings may be conducted in secret. Our federal courts are well-equipped to handle these cases: the federal government has successfully prosecuted hundreds of terrorism cases in federal court since 9/11, without having to decide novel legal issues at every step and without abandoning the Constitution. In Guantánamo, we are using a second-class system of justice for the most important capital trials in our country's history. Already we are alone among Western nations in our heavy use of capital punishment. Must we also leave our Constitution behind?
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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.