It was an extraordinary, though typically chaotic, day at the Guantánamo Military Commissions. David Hicks began the proceedings with three lawyers sitting beside him at counsel table. After a series of dubious rulings by the trial judge, he ended the day with only one. Hours later, .
Hicks maintained, under questioning, that his guilty plea was unrelated to the loss of his attorneys, but the facts speak for themselves. Though not overtly coerced, Hicks's guilty plea was the product of a coercive system. And this outcome will do little to reduce the perception that the United States has created a result-driven system that is incapable of providing fair trials free of controversy.
No Military Commission proceeding would be complete without a dispute about counsel that nearly derails the case. (See here, and here) Monday's proceedings stuck to the script. The judge asked Hicks whether he was satisfied with his attorneys. He said he was, except that he hoped to add additional lawyers and paralegals so as to achieve "equiality" with the prosecution. But precisely the opposite occurred.
First, following a somewhat arcane discussion, the judge ruled preliminarily (while claiming not to) that one of Hicks's lawyers, Rebecca Snyder, could not represent Hicks, because she had been appointed by the chief military defense counsel but was not herself on active duty. This was wrong – and the judge allowed that he might revisit the issue after briefing -- but the result was the first empty chair at Hicks's table.
Next, and far more troubling, the judge stated that Hicks's civilian defense counsel, well-known criminal defense attorney Joshua Dratel, had not submitted a letter indicating his agreement to comply with the rules and regulations of the Commissions, and therefore was not qualified to serve as counsel. Under Commission rules, a civilian lawyer must sign an agreement issued by the Secretary of Defense indicating that the lawyer agrees to abide by the Commission's regulations. The problem for the judge was that the Secretary of Defense had not yet created that agreement, and therefore Dratel could not sign it.
Instead, the judge had created his own version of the agreement – thereby, in Dratel's words, "usurping the authority of the Secretary of Defense." Dratel would have signed even that version – so long as the agreement made clear that it applied only to regulations that already existed, and not to those (and there are many) that have not yet been issued. "I cannot sign a document that provides a blank check on my ethical obligations as a lawyer," Dratel explained. In simple terms, Dratel was unwilling to pledge compliance with rules that he had not yet seen.
The judge was unpersuaded. "I find no merit in the claim that this is beyond my authority," he said. "That's sometimes what courts do, they find a way to move forward." Because Dratel refused to sign the agreement as written by the judge, he could not serve as counsel. There was a second empty chair.
"I'm shocked," said Hicks, "because I've just lost another lawyer. Now I'm left with poor Mr. Mori." (Major Dan Mori is Hicks's very able military defense counsel.)
This was followed by one of those almost-surreal moments that the Military Commissions routinely produce. The judge had just issued rulings that effectively deprived Hicks of two of his three lawyers. So he decided the time was right to address an issue of fundamental importance: Hicks's clothes. Hicks had arrived in court wearing beige prison attire. The judge said that he thought that a suit and tie, or business casual – which he helpfully defined – would be more appropriate. This practice was "designed to protect the presumption of innocence," the judge explained, because Commission members who observed the accused in prison clothing might be subconsciously prejudiced against him.
Never mind that the President and former Secretary of Defense had already declared Hicks a guilty terrorist; that the Supreme Court had already once intervened to halt illegal proceedings under which he faced trial; that the events of the morning had left him facing serious charges with only a fraction of his legal team. The true threat to a fair proceeding had been identified, and Hicks was wearing it.
It is against this backdrop that Hicks's decision to enter a plea of guilty must be understood. It is expected that Hicks's plea will result in his return to Australia within the next few months. He has been held in Guantánamo for more than five years. By his lawyers' and family's account, he has despaired of his chance of receiving a fair trial in this system, and the day's events hardly could have convinced him otherwise. He does not want to be a symbol of an unjust system. He wants to go home. We'll learn the details of the plea – and perhaps see Hicks formally sentenced – later this week.
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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.