I’m sure you’ve seen the headlines or read the news on President Obama’s speech this week about the plan he sent to Congress to close the Guantánamo prison. But what’s really going on? And what new developments — good or bad — were buried in the speech and the plan? Here’s our take.
I hate to start with the bad, but the bad is bad enough that we should start there:
No end to indefinite detention or military commissions: Let’s start with the horrible news. The worst part of the plan is a scheme to bring detainees to the United States for continued indefinite detention or military commission trials. These harmful Guantánamo policies should end at Guantánamo, not be brought to the United States. Detainees should be brought to the U.S. if there’s evidence to try them in federal criminal courts here, not to continue indefinite detention or military commissions on American soil.
Congress will say “no” to the president’s plan: It didn’t take long for Congress to weigh in. In fact, Sen. Mitch McConnell (R-Ky.) and House Armed Services Committee Chairman Mac Thornberry (R-Texas) essentially said “no” to the plan before the president even gave his speech. (I guess McConnell got some practice with a preemptive “no” when just an hour after reports of Justice Antonin Scalia’s death, he said the Senate would not consider any Supreme Court nominee named by Obama.)
And now for the good (and it really is good):
President Obama cares A LOT about closing Guantánamo: The Pentagon sends reports to Congress all the time on lots of different issues. We hadn’t expected the president to say anything about the Pentagon sending this plan to Congress. Instead, he delivered the speech from the Roosevelt Room, showing steely resolve. No one can question whether the issue matters to the president.
The plan sheds light on how detainees are transferred overseas: As the president stated, Guantánamo ’s population has gone from 242 detainees down to 91 on his watch, with the vast majority of the detainees transferred overseas for repatriation or resettlement. The pace has been maddeningly slow, but the plan pulls back the curtain partway on the intense level of review and diplomatic and intelligence work that goes into each transfer.
The president promised to transfer overseas the cleared detainees: Thirty-five of the 91 remaining detainees have been cleared for transfer overseas, with many of them waiting seven or more years to be transferred out. We’ve heard this promise before from administration officials, but we hope that the president’s renewed determination will mean that now the pace will pick up.
The plan promises faster review of whether to clear more detainees: Forty-six of the 91 remaining detainees are in limbo — never charged with a crime, but never cleared to be sent home. The president years ago set up a Periodic Review Board to evaluate each detainee for clearance. But it has been extremely slow, leaving dozens of detainees waiting for their first hearing. The president said he is “accelerating” the PRB reviews, and his plan said all initial reviews will be done by this fall. That’s good news because the PRBs have so far found that 18 of 21 detainees who have gone through the process do not pose a security threat and can be transferred. This commitment to faster review could end indefinite detention for many detainees.
The president wants military commissions limited to the detainees already charged and not used for anyone else: The president recognized what has been obvious to everyone who has observed them — the military commissions, which apply to 10 remaining detainees, are rife with problems. “They are very costly, they have resulted in years of litigation without a resolution,” he said. He is keeping the commissions going for the 10 detainees already charged in them, but he is cutting them off for future use, saying “this type of use of military commissions should not set a precedent for the future.” While he should end them for all, without exception, it’s a step in the right direction to lay down this limit.
Future captures should be prosecuted in federal criminal courts: The president has been under intense pressure from Congress — particularly from the trio of Sens. Lindsey Graham (R-S.C.), John McCain (R-Ariz.), and Kelly Ayotte (R-N.H.) on the Senate Armed Services Committee — to support new indefinite detention authority and come up with a new prison to hold future captures without charge or trial. Instead, the president gave firm support for the value of federal criminal courts for future captures, stating “our preferred option, the most effective option for dealing with individuals detained outside military theaters, must be our strong, proven federal courts.” That’s certainly a presidential “no” to the voices clamoring to lock up more people without charge or trial.
There is a lot of work to be done over the remaining 11 months of the Obama presidency to end indefinite detention and close Guantánamo for good. While the events this week are a good kickoff to the final push, we must also ensure that indefinite detention and military commissions end when Guantánamo closes.
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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.