(Originally posted on Daily Kos.)
An unavoidable consequence of creating a new and ad hoc justice system on the fly is that issues that would be simple and routine in an ordinary criminal trial end up raising questions that are novel and highly contested. This has been a regular feature of the Guantánamo military commissions. We travel here to observe "pre-trial proceedings" with the expectation that the cases will be moving towards trial — only to find out that, because of some arcane dispute about what the new rules mean, trial has become even more remote.
Day Two of the proceedings in the case of Ibrahim Ahmed Mahmoud al-Qosi provided a case in point. Lt. Col. Nancy Paul became the first military commissions judge to apply the Military Commissions Act of 2009 (MCA of 2009) to one of six cases that were pending at the time the act was passed. Both sides won something and lost something in her decision on the government's motion to amend the charge sheet.
The judge read from the bench her ruling (PDF) on the government's last-minute motion to amend the charge sheet, which accuses al-Qosi of conspiring with Osama bin Laden and al Qaeda and providing material support for terrorism. Confronted with an effort by the government to capitalize on the recent passage of the MCA of 2009 to dramatically expand the charges against al-Qosi, she pushed back.
As I explained in my previous post, the MCA of 2009 changed the jurisdiction of the military commissions from presiding over the trials of "unlawful enemy combatants" to those of "unprivileged enemy belligerents" — individuals who lack prisoner of war (POW) status as defined by the Third Geneva Convention. The government moved to amend the charges against al-Qosi to bring them in line with the new jurisdictional basis of the military commissions.
But the government's proposed amendments went far beyond what the MCA of 2009 requires or even permits. They sought to replace the nine overt acts that al-Qosi is alleged to have conducted as a part of a conspiracy to commit war crimes with 12 new overt acts, and to expand by four years the time frame in which al-Qosi allegedly engaged in conspiracy and material support for terrorism. The amended charge sheet would allege that al-Qosi started engaging in illegal conduct back in 1992 (rather than 1996) and that he did so in, among other places, Ethiopia, Somalia, and Chechnya.
Al-Qosi was firstcharged in 2004. The charges against him were amended in 2008. His defense counsel have spent years preparing his defense in response to the latest set of charges. Adding new charges at this late date potentially would require the defense to reinvestigate the entire case in foreign lands.
Lt. Col. Paul saw through the government's argument that these vast changes were needed to conform the charges to the MCA of 2009. Reasoning from the old rules promulgated to apply to the Military Commissions Act of 2006 and from the Uniform Code of Military Justice rules governing the amendment of charges, the military judge granted the government's motion to replace the phrase "unlawful enemy combatant" with the new "unprivileged enemy belligerent." But she denied the remainder of the motion as an effort by the government to "fundamentally" change the charges against Al-Qosi, holding that the requested amendments "dramatically change[...]the nature of the facts alleged" and brought "unfair surprise" to the accused.
The military judge got it right this time. Permitting the government to expand both the time frame and substance of the allegations against al-Qosi after he has already spent two years defending himself against the 2008 charges would be fundamentally unfair.
But the ruling does little to ensure that al-Qosi will get a fair trial in the military commissions, because the government can now simply withdraw the charges against al-Qosi and return to the Convening Authority to seek a charge sheet that includes all of the additional facts it wants to plead. Should the government do so, where will that leave al-Qosi? After nearly eight years of detention in Guantanamo Bay, al-Qosi will be even further away from a trial. He will be arraigned and will go through the process of choosing counsel again. And the public will have spent millions of dollars supporting military commissions that have yet to provide a fair trial — and are structurally incapable of doing so.
As the judge read her rulings on Thursday, I thought of how the novel legal issues she reached would have been avoided had Attorney General Holder chosen to prosecute al-Qosi in federal court. Both of the crimes with which al-Qosi is charged — conspiring with Osama bin Laden and al Qaeda and providing material support for terrorism — could be prosecuted in federal court. Neither is a war crime traditionally prosecuted in a military commission. And in federal court, we would not spend many years and untold resources squabbling over preliminary issues of fundamental fairness to the accused.
These issues are still not resolved in al-Qosi's case. The judge has yet to rule on three defense motions to dismiss the case, two of which highlight that the military commissions are inherently illegitimate — a separate and vastly unequal system created from scratch to prosecute non-citizens whom the federal government believes it may not be able to convict in federal court. This system violates the Constitution and international law and undermines our commitment to the rule of law.
The government should indeed withdraw the charges against al-Qosi. But if it seeks to try him on a new set of charges, it should do so in a federal court that will provide due process and other much needed fair trial protections.
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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.