On Monday pretrial hearings resumed in the case of Canadian Omar Khadr, captured at age 15 by U.S. forces in Afghanistan. Accused of throwing a grenade that killed an American soldier and participating in a terrorist conspiracy beginning when he was only 10 years old, Khadr has spent a third of his life at Guantánamo. Unless a plea bargain is reached, Khadr's August military commission trial will be the first under President Obama.
Omar Khadr , and Monday's hearing was held to determine whether Khadr could fire his military lawyer and represent himself going forward. Khadr's demeanor as he was led into the courtroom was noticeably different than in previous proceedings. Usually he flashes a warm smile at his lawyers, but on Monday he seemed more serious than usual.
Khadr began by reading a to the court, in which he explained he fired his lawyers because the military commissions are "unfair and unjust" and "constructed to convict detainees, not to find the truth." His tone was matter-of-fact rather than defiant, but he was plainly fed up with a process that had dragged on for five years.
In his longest address to the court during the five years of his military commission proceedings, Khadr also revealed that he had rejected a plea offer to serve five more years at Gitmo. The deal would have required him to plead guilty to war crimes, serve five years of a 30-year sentence at Gitmo, and then possibly served more time in Canada if the Canadian government chose to require him to do so. Khadr currently faces a maximum sentence of life imprisonment if convicted.
Khadr told the court he had rejected the plea agreement because it would "legitimize this sham process" and because he did not want to "willingly let the U.S. government use [him] to fulfill its goal." He said agreeing to a plea offer "will give excuse for the government for torturing and abusing me when I was a child."
Khadr added, "The unfairness of the rules will make a person so depressed that he will admit to allegations made upon him or take a plea offer that will satisfy the U.S. government." Khadr's Canadian lawyer Dennis Edney, who has no official standing before the military commission, later told reporters that Khadr had also rejected the plea offer because he "could not admit to guilt to something he did not do."
(Last week, Sudanese detainee Ibrahim al-Qosi, pled guilty to charges of conspiracy and providing material support for terrorism as a cook and driver for al Qaeda, marking the first conviction in the military commissions system under the Obama administration.)
Military judge Army Col. Patrick Parrish then asked Khadr a series of questions to determine if he could represent himself. Federal courts have tried and tested rules that would allow them to determine whether a traumatized young man with little formal education was competent to represent himself. In the commissions, the military judge had to apply an untested rule created a month and a half ago.
The judge had to decide on his own which issues were relevant to Khadr's competence to represent himself, and a military prosecutor periodically interjected to suggest additional questions to ask Khadr. When the judge asked Khadr if he was familiar with the procedural rules for military commissions, Khadr said it didn't matter since the rules "can change anytime at this military commission."
He has a point—there have been five different sets of rules by my count, with the last rule manual reaching the island when Khadr's last pretrial session started in late April.
At two points during Monday's proceedings, the military judge appeared to be about to rule that Khadr could represent himself. During the morning session, the judge was in the middle of ruling that Khadr is competent to represent himself when defense lawyer Lt. Col. Jon Jackson interrupted him.
But Khadr threw a wrench into the process when, after a brief recess, he announced he wanted to boycott the proceedings altogether. He asked, "How can I ask for justice from a process that doesn't offer it?" When pressed to explain what he meant by boycott, Khadr said he didn't intend to defend himself at all. Refusing to hold a trial without a defense, the judge ordered military defense lawyer Lt. Col. Jon Jackson to stay on the case.
The judge announced that Khadr will proceed to trial on August 10 as scheduled, after Lt. Col. Jackson consults his state bar association's ethics committee and the Army Judge Advocate General Corps about his ethical obligations to a client who doesn't want to be defended. So we may be headed for another trial in which the defense remains silent. (In one of the two trials that have taken place at Guantánamo, Ali Hamza al Bahlul was convicted in November 2008 after a one-week trial in which the defense introduced no witnesses, made no legal arguments, and put on no defense).
It would be shameful for the first military commission trial under President Obama to be the prosecution of an alleged child soldier. And the legitimacy of any conviction in the flawed military commissions system will be open to question, but if Khadr is convicted without mounting a defense, the conviction will most certainly be viewed as illegitimate. This is a situation created by the broken military commissions system: Khadr's refusal to participate in this unfair process is the predictable result of a system designed to produce convictions, not justice.
The commissions system is unfit to try any Guantánamo detainee, especially an alleged child soldier who has been held in U.S. custody for a third of his life. Time is running out for the Obama administration to do the right thing.
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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.