Yesterday morning, I watched Sudanese detainee Noor Uthman Muhammed plead guilty before a military commission in Guantánamo as part of a sealed plea deal capping his sentence at an undisclosed number of years. Noor Uthman Muhammed’s case is the only war crimes prosecution currently before the Gitmo military commissions. He is accused of training recruits at the Khalden terrorist training camp in Afghanistan and providing additional logistical support to the camp’s operations between 1996 and 2002.
In what felt like carefully choreographed pageantry, the judge, Navy Capt. Moira Modzelewski, accepted a plea from Noor Uthman Muhammed (whom she referred to simply as “Noor”), who admitted guilt to two charges of material support and conspiracy to provide material support to terrorist networks. However, the plea excised the part of the charges that asserted Noor had conspired to provide material support to attacks on civilians, murder in violation of the laws of war, murder against protected persons, or destruction of property in violation of the laws of war -- essentially, the crimes you might think were the most serious, and that bear some resemblance to war crimes.
The details of the plea deal are under seal; the judge explained that she didn’t want the military panel en route to the sentencing hearing today to be prejudiced beforehand.
Muhammed, separated from me and the other NGO monitors and reporters by 30 feet and a double-faced glass window, was hard to see. He looked tired and diminutive and spoke haltingly when asked by the judge if his plea was voluntary. From where I sat, I could only see his white skullcap, except for the times when he stood, with the help of a military guard and his translator, to be sworn in and to acknowledge his guilty plea.
The judge spoke cautiously and simply in asking Muhammed whether his plea was voluntary, whether he understood that he was giving up the right to appeal, whether he understood he was accepting guilt. The whole process took an hour and a half, and although the rituals of “consent” were respected by this deliberative questioning, as I sat in the maximum security courthouse and watched the judge rattle off the list of rights Muhammed was forfeiting. It was hard to believe that Muhammed had any real choice.
Noor answered “na’am” (“yes”) to every question about whether he understood what the plea meant. But a reporter later told me that the court translator failed to translate Mr. Muhammed’s one full sentence in court: “Enough, enough already…Let’s get it over with.”
That sentence says a lot about the “voluntariness” of Muhammed plea. After almost nine years in U.S. detention, and with the prospect of a military commission trial riddled with flaws, it is no surprise that Muhammed opted for the plea deal. This is a calculation made by criminal defendants all the time, but the calculus for Gitmo detainees is completely different: Under the new military commission rules, Muhammed can’t even count his many years in detention towards his eventual sentence if he goes to trial. And given defense counsel’s previous concerns about Muhammed’s deteriorating mental health and the policy of indefinite detention adopted by the Obama Administration, it’s hard to pretend this “choice” was about responsibility, autonomy or fairness.
By securing the third guilty plea at Gitmo since Obama took office, the government will avoid review of the critical legal issues raised by Muhammed’s case—and the issues are significant. The principal charges against Noor are material support and conspiracy to provide material support—neither of which is a crime under the laws of war. “Material support” laws have been challenged before the Supreme Court for their vagueness. Most of the events that gave rise to the charges against Muhammed took place before 2001—before there was any “war” between the United States and any terrorist group or Afghanistan. And now the military commissions will not have to address the defense’s argument that the military commissions violate U.S. constitutional law because they only apply to non-citizens.
Asked why it took over 8 years to bring this case to court, the military commissions’ chief prosecutor, Captain John Murphy, fumbled through a series of reasons—the detailed discovery, complicated issues, temporary suspension of commissions, etc.. This is the 10th year of the Guantánamo military commissions, and they are still demonstrably incapable of producing justice. We should use our tried and true federal courts, instead of perpetuating a discredited military commissions system that is recognized as a dark stain on American history. Yesterday, Chief Prosecutor Captain Murphy maintained he was “extremely comfortable” with the level of justice produced by the military commissions, but I feel incredibly uncomfortable with the spectacle I witnessed.
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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.