The Guant谩namo military commissions, the scheme created by the government to try 9/11 and other detainees, have devolved into an unacceptable and alarming assault on defense lawyers attempting to provide fair representation to their clients.
A new letter, drafted by the 老澳门开奖结果 and joined by 150 death penalty lawyers and law professors, registers the capital defense community鈥檚 outrage over the legal breakdown, which clearly violates federal and international law.
In the current crisis, Brig. Gen. John Baker, a decorated combat veteran and the second-highest ranking lawyer in the Marine Corps, was sentenced to by the presiding military judge in the prosecution of Abd Rahim Hussein Al-Nashiri, a suspect in the 2000 bombing of the USS Cole. Gen. Baker, in his role as the chief defense counsel for the Guant谩namo military commissions, had granted a request by Al-Nashiri鈥檚 defense counsel to withdraw from the capital case because of an ethical conflict that is secret but is known to involve government monitoring of attorney-client communications. Three of Al-Nashiri鈥檚 long-term lawyers then withdrew 鈥� including his one attorney qualified to work on death penalty cases. The lawyer left on the case was a junior military lawyer.
The presiding military judge, Col. Vance Spath, was displeased 鈥� both that the lawyers had withdrawn and that Gen. Baker granted their dismissal without his permission. How Judge Spath expressed that displeasure is where things went horribly wrong. He found Gen. Baker had acted in contempt of the court, and . (Gen. Baker spent 48 hours confined to his trailer at 鈥淐amp Justice鈥� on the Guant谩namo naval base before being released after he filed a federal appeal, which is still pending.) Spath then ordered the young military lawyer with no death penalty experience to proceed with Al-Nashiri鈥檚 defense on his own.
Just as you would not expect a recent medical school graduate to perform a complex and risky surgery, you would not assign a junior lawyer without capital experience a leading role in a capital case.
Capital defense is a highly complex and specialized area of law. Both in traditional and in the , there must be at a minimum two lawyers representing a person facing the death penalty, and at least one lawyer must be 鈥渓earned counsel,鈥� with distinguished prior experience and knowledge in the area of capital trials. Just as you would not expect a recent medical school graduate to perform a complex and risky surgery, you would not assign a junior lawyer without capital experience a leading role in a capital case.
Richard Kammen, Al-Nashiri鈥檚 former , had been on the case for nine years. He had been practicing law for 46 years and had served as lead capital counsel in numerous cases. In contrast, Al-Nashiri鈥檚 remaining defense counsel, , is a 2012 law school graduate who meets none of the requirements for 鈥渓earned counsel.鈥� He was added to the existing Al-Nashiri defense team just a few months ago. He has no prior capital experience, and no prior criminal defense experience with homicide charges. He rightly told the court exactly that.
Judge Spath ordered the young lawyer to represent Al-Nashiri on his own in the scheduled proceedings. The judge鈥檚 departure from the rules, which require learned counsel at every part of a capital prosecution, is inexplicable. Even beyond the binding military commission rules, the have long explained that the unique and complex labyrinth of capital trial preparation and investigation requires qualified death penalty counsel represent the defendant at every stage of the proceedings. There is no exception to this rule because the expertise is deemed necessary throughout. Nonetheless, Judge Spath suggested that the junior defense counsel should, alone, stand in the place of learned counsel and a team with deep knowledge of the voluminous issues that the case raises. The young lawyer resisted, , that he was 鈥渘ot qualified鈥� to represent Mr. Al-Nashiri in the capital pretrial matter without learned counsel.
Judge Spath dismissed the lawyer鈥檚 refusal to speak as a trial 鈥渟trategy,鈥� as if requesting qualified counsel for his client was somehow a personal choice, designed to disrupt the case. The young lawyer pointed out that it was neither his nor his client鈥檚 choice: 鈥�." Judge Spath ordered him to continue anyway.
The judge鈥檚 unjustified and reprehensible attack on defense counsel, and his insistence that a major capital trial go forward without experienced counsel, is just the latest in a long string of outrages in the Guant谩namo military tribunals. Listening devices in attorney-client meeting rooms have been installed, disguised as smoke detectors. The FBI has infiltrated and investigated defense teams. Privileged legal mail is seized. Sadly, the list goes on.
The tribunals have become a costly farce, inflicting incalculable damage to due process and justice. This farce must end.
Learn More 老澳门开奖结果 the Issues on This Page
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Press ReleaseDec 2024
Free Speech
National Security
老澳门开奖结果 and Partners Urge Supreme Court to Block TikTok Ban老澳门开奖结果 and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON 鈥� Today, the 老澳门开奖结果, 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鈥檚 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 鈥渟hutter one of America鈥檚 most popular speech platforms the day before a presidential inauguration.鈥� 鈥淭he Constitution imposes an extraordinarily high bar on this kind of mass censorship,鈥漵aid Patrick Toomey, deputy director of 老澳门开奖结果鈥檚 National Security Project. 鈥淭he 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.鈥� The brief argues that the D.C. Circuit failed to fully address the law鈥檚 profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court鈥檚 decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users鈥� First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government鈥檚 ban on TikTok as a vindication of users鈥� 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 鈥減ropaganda.鈥� But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its 鈥渕otivating ideology鈥� or 鈥減erspective,鈥� and the government has not come close to meeting that bar here. 鈥淭he government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,鈥� said David Greene, civil liberties director at EFF. 鈥淭he Supreme Court should put the TikTok ban on hold while it considers the DC Circuit鈥檚 erroneous ruling.鈥� Finally, the brief underscores that the government can鈥檛 impose this type of sweeping ban unless it鈥檚 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鈥檚 invocation of 鈥渘ational security鈥� as a trump card and failed to hold the government to its burden. 鈥淩estricting citizens鈥� 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,鈥� said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. 鈥淚t would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.鈥� 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
老澳门开奖结果 Statement on New White House Strategy to Counter Islamophobia老澳门开奖结果 Statement on New White House Strategy to Counter Islamophobia
WASHINGTON 鈥� 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, 老澳门开奖结果 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 老澳门开奖结果鈥檚 National Security Project: 鈥淲hile 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鈥檙e profoundly frustrated that the administration didn鈥檛 take even the basic, overdue step of recognizing that anti-Muslim discrimination is uniquely normalized and embedded in government policies.鈥� -
VirginiaDec 2024
National Security
Trabelsi v. Crawford, et al. 鈥� Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted ManTrabelsi v. Crawford, et al. 鈥� 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鈥檚 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鈥檚 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鈥檚 Argument That His Immigration Detention Is UnlawfulFederal Judge Rejects Acquitted Man鈥檚 Argument That His Immigration Detention Is Unlawful
ALEXANDRIA, Va. 鈥� 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鈥檚 case, his claims challenging the government鈥檚 detention of him would fail. 鈥淩eviewing claims that the government is holding someone unlawfully is at the core of the judicial function, and we鈥檙e heartbroken for our client that the court got this so wrong,鈥� said Brett Max Kaufman, senior staff attorney with the 老澳门开奖结果鈥檚 Center for Democracy. 鈥淭he government鈥檚 arguments in defense of Mr. Trabelsi鈥檚 detention makes a hash of the Constitution, immigration laws, and its own extradition treaty.鈥� 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鈥檚 ruling today, and will continue to be litigated on a separate track. 鈥淢r. 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,鈥� said Nicole Hallett, clinical professor of law and director of the Immigrants鈥� Rights Clinic at the University of Chicago Law School. 鈥淗e cannot be held indefinitely and we will continue to fight to make sure that justice ultimately prevails.鈥� Mr. Trabelsi is represented by the 老澳门开奖结果, the University of Chicago Law School鈥檚 Immigrants鈥� Rights Clinic, the 老澳门开奖结果 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.