Yesterday was a stark reminder that instead of closing the book on the Bush-era military commissions, President Obama is adding another sad chapter to that history. Although President Obama promised transparency and sharp limits on the use of tortured and coerced statements against the accused, at Guantánamo today one military judge ordered that a sentence be kept secret from the public and another military judge allowed statements obtained by abuse and coercion of a 15-year-old to be used at trial.
Monday was Day One of the sentencing hearing in the case of Sudanese detainee Ibrahim al-Qosi. Al-Qosi was the first detainee to be convicted under President Obama, in a plea deal entered this June in which he admitted to being an al Qaeda cook and occassional driver. Yesterday sawjury selection of senior military officers, who would deliver a formal sentence in al-Qosi's case. If the jury delivers a sentence longer than what was agreed to in the plea bargin, it will be moot. Unless the jury delivers a shorter sentence, al-Qosi's true sentence will be what was hammered out in the plea agreement.
But in an unprecedented move, military judge Air Force Lt. Col. Nancy Paul ordered today that al-Qosi's true sentence will be kept secret until he's released. The judge said the government requested that the sentence be kept secret.
A fellow observer of the military commissions here, former Marine judge and law of war expert Gary Solis, here to monitor the commissions for the National Institute for Military Justice, says he has participated in 700 courts-martial and has never heard of a secret sentence.
Last month, the Al-Arabiya satellite news network cited two sources who have seen the plea agreement and say the plea deal would cap al-Qosi's sentence at two years (beyond the eight years he's already served). I've heard speculation here at Gitmo that the reason for concealing al-Qosi's sentence from the public is to prevent political attacks portraying the Obama administration as weak on terrorism before the November mid-term elections. (There have been only three other convictions by the military commissions — all under former President Bush — and two of the three have already been released. Former Guantánamo detainee Salim Hamdan's 2008 sentence of five months on top of time served drew fierce criticism from some.)
This country deserves more than election-year charade, in which a jury delivers a show sentence and the true sentence is concealed from the public because some may perceive it as too lenient.
A final pretrial hearing also took place Monday in the case of Canadian Omar Khadr, who will start trial today as the first test trial of the military commissions under President Obama. In a summary decision of only a few words, and with no explanation, the military judge in Omar Khadr's case, Col. Patrick Parrish, denied defense motions to exclude self-incriminating statements Khadr made to interrogators because of torture and other abuse. The judge will issue a written decision, certainly after the trial begins and possibly after it's ended, but for now he's offered no explanation.
It boggles the mind that the military judge could find that Khadr was not coerced and gave these statements to interrogators voluntarily. Khadr, then 15 years old, was taken to Bagram near death, after being shot twice in the back, blinded by shrapnel, and buried in rubble from a bomb blast. He was interrogated within hours, while sedated and handcuffed to a stretcher. He was threatened with gang rape and death if he didn't cooperate with interrogators. He was hooded and chained with his arms suspended in a cage-like cell, and his primary interrogator was later court-martialed for detainee abuse leading to the death of a detainee. During his subsequent eight-year (so far) detention at Guantánamo, Khadr was subjected to the "frequent flyer" sleep deprivation program and he says he was used as a human mop after he was forced to urinate on himself.
In closing arguments before the judge's ruling, Khadr's sole defense lawyer, Lt. Col. Jon Jackson, told the judge, "Sir, be a voice today. Tell the world that we actually stand for what we say we stand for."
Though President Obama promised that coerced evidence would not be used against detainees in the military commissions, today's ruling suggests that as a country, we stand for abusing a 15-year-old teenager into confessing, and using those confessions against him in an illegitimate proceeding.
Not just Omar Khadr, but also the United States, is on trial starting tomorrow. We should show the world that we can provide a fair trial to Omar Khadr, after what is known about what we've done to him. But that simply is not going to happen in a Guantánamo military commisison designed to ensure quick convictions at the expense of due process and transparency, and structured to prevent the revelation of abusive interrogations engaged in by the U.S. government.
CORRECTION: An earlier version of this post stated that Gary Solis "presided over 700 courts-martial." That was incorrect. Solis presided over 400 cases as a judge, but participated in 760 as a lawyer or judge.
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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.