Earlier this afternoon, the Senate voted to table (a fancy word for defeating) an amendment that was proposed by Sen. James Inhofe (R-Okla.) to the military construction appropriations bill. The Inhofe Amendment would have prohibited the Department of Defense from using any funds under the bill to modify or construct any facilities in the U.S. to hold any of the Guantánamo detainees, including those charged, tried, or convicted in regular federal courts.

The ACLU, as well as a number of coalition partners, wrote to the Senate urging the defeat of this fear-mongering amendment. Had it passed, it would have greatly impeded the ability of Attorney General Eric Holder to prosecute Guantánamo detainees in our tried-and-true federal criminal courts. Additionally, it would have put front-line law enforcement and corrections officials at needless risk by eliminating the ability to enhance security or communications at facilities holding detainees during their trials.

The defeat of the Inhofe Amendment, along with the Graham Amendment two weeks ago, represent important congressional victories for the rule of law and our Constitution.

Equally heartening was a statement signed by several prominent conservatives including Bob Barr, David Keene and Grover Norquist in which they support the closing of Guantánamo, as well as the decision to prosecute detainees in regular federal courts. They write:

Civilian federal courts are the proper forum for terrorism cases. Civilian prisons are the safe, cost effective and appropriate venue to hold persons convicted in federal courts. Over the last two decades, federal courts constituted under Article III of the U.S. Constitution have proven capable trying a wide array of terrorism cases, without sacrificing either national security or fair trail standards.

While we’ll still likely see attempts in Congress to hamper efforts to close Guantánamo and restore the rule of law by bringing detainees to trial in federal criminal court , the recent victories, as well as the ever-broadening array of voices in support, offer cause for hope.

Late Friday night, the government filed a brief in which Secretary of Defense Robert Gates purportedly invoked his authority to block the release of photos depicting the abuse of detainees in U.S. custody overseas. The development came in our five-year-old lawsuit for the release of records, including photographs, related to the abuse of prisoners. Secretary Gates was granted the authority to exempt certain images from disclosure under the Freedom of Information Act (FOIA) as part of the Homeland Security appropriations bill signed by President Obama last month.

An amendment to the bill grants the Secretary of Defense the authority to suppress certain photographs deemed harmful to national security. After the bill was signed into law, we urged Secretary Gates’ not to invoke the authority to block the release of the photos. Unfortunately, not only did Secretary Gates invoke the authority, but his blanket certification states that it applies to all of the photos, failing to provide the individualized assessment that the amendment's language requires. The government also failed to provide any basis for the claim that disclosure of the photos would harm national security. We plan to file a responsive brief.

As Adam Serwer pointed out in Tapped this morning:

What suppressing the photos probably also does is help prevent the kind of widespread public reaction to torture that we saw following the release of the Abu Ghraib photos. It's one thing to hear about torture in the abstract, it's another to see its effects visually. By suppressing the photographs, the White House is also circumventing potential criticism of its decision to seek as little accountability as possible for the behavior the pictures portray.

Alex Abdo, a legal fellow with the ACLU’s National Security Project stated in a press release

The government's argument for suppression of the photos sets a dangerous precedent – that the government can conceal evidence of its own misconduct precisely because the evidence powerfully documents gross abuses of power and of detainees. This principal is fundamentally anti-democratic. The American public has a right to see the evidence of crimes committed in their name.

Meaningful accountability is impossible without transparency. Learn more about the ACLU’s accountability initiative, and take action today at www.aclu.org/accountability.

With today's announcement that the Justice Department will move five of the men accused of 9/11 crimes to federal court in New York, the question still remains about one of the other high-profile detainees: Omar Khadr.

The world knows Khadr as one of the child soldiers detained at Gitmo since he was 15. (The other child soldier, Mohammed Jawad, was released back to Afghanistan after the government failed to produce enough credible evidence to bring charges against him.) Khadr is accused of throwing a grenade that killed an Army medic in Afghanistan, a charge that the U.S. government itself later threw into question by accident during one of his pre-trial hearings:

During a break in the hearing, members of the press were given copies of legal motions on the issue of whether the military commission has the authority to try Khadr, given his status as a juvenile at the time of his alleged offenses. Included in those papers was a classified attachment, which, according to military commissions officials, should have been redacted, instead of released.

The significance of the document was made clear by Khadr's military defense counsel, Lt. Cmdr. William Kuebler. Asked to describe it later in the day, Lt. Cmdr. Kuebler said it dispelled what he referred to as a myth propagated by the government: that Khadr was the only person who could have lobbed the grenade that killed U.S. soldier Christopher Speer — the basis of the most serious charge against him. The document, created in 2004, turned out to be an interview of a witness to Khadr's capture. In it, the witness describes finding two people alive in the Afghan compound in which Khadr was captured — the witness shot and killed the first man before he saw Khadr. Then, according to Lt. Cmdr. Kuebler, Khadr, who was 15 years old at the time, "was shot on sight — in the back — twice — while wounded, sitting and leaning against a wall facing away from his attackers." (emphasis ours)

Earlier today, the Supreme Court of Canada heard arguments in an appeal by the Canadian government on two lower court decisions that found Khadr's rights under the Canadian Charter of Rights and Freedoms had been breached when Canadian officials interviewed him at the prison in Guantánamo in 2003 and shared the resulting information with U.S. authorities. Khadr's lawyers argued that Canada was complicit in his abuse and maintain that the Canadian government is obliged under international law to demand the prisoner's return. Since Khadr was only addressed in passing at Attorney General Eric Holder's news conference this morning, Canadian news outlets are reporting the possibility that Khadr could still be repatriated to Canada and tried in a Canadian court.

Or, he could still be tried in the flawed military commission system. But as Dafna Linzer points out today in ProPublica, the evidence against those the government won't transfer is flimsy:

[…]Most of the remaining [Guantánamo] detainees are considered too difficult to prosecute, mostly because the evidence against them is thin or based on statements obtained through coercion.

One defense attorney said federal prosecutors had so little on his client that they asked the detainee to suggest a charge he would be willing to plead guilty to.

The U.S. government has refused to acknowledge his status as a child or to apply universally recognized standards of juvenile justice in his case. According to Human Rights Watch:

No international tribunal since Nuremberg has prosecuted a child for alleged war crimes. The United Nations committee that monitors the rights of children found that the United States has held alleged child soldiers at Guantánamo without giving due account of their status as children and concluded that the “conduct of criminal proceedings against children within the military justice system should be avoided.

It's time for all Guantánamo detainees to be moved to federal court, a system that's successfully prosecuted more than 150 defendants on terrorism-related charges, both before and after 9/11. Compare that to the whopping three convictions achieved by the broken military commissions. Tell Attorney General Eric Holder to send all detainees' cases to federal court.

Khadr grew up in Gitmo. It's time to give him a fair shake at justice, or better yet, repatriate him to Canada for rehabilitation, and reintegration into society and a second chance in life.

A new ACLU video features family members of 9/11 victims calling for federal trials of terrorism suspects.

The families were interviewed before the Obama administration announced today that certain Guantanamo detainees will be transferred to the U.S. for trial in federal court. The administration also said other detainees will be tried in the illegitimate military commissions.

“It is of utmost importance to me that those who were responsible for the attacks of 9/11 face a court,” says Adele Welty in the video. Her son was a New York firefighter killed at the World Trade Center.

“It’s very important to me that we get the right people,” says John Leinung, whose stepson was killed while working in the Twin Towers. “That the right people are punished or held to account for what happened on 9/11.”

Pat Perry, whose son was a police offer killed on 9/11, says she would rather see the Guantánamo detainees who have been held without charge “appear in open court where we can all sift out what we feel is really the truth and the judges can make a decision based on our Constitution.”

These 9/11 family members all say they agree that holding detainees without charge in Guantánamo is a betrayal of American values and they look forward to true justice being served in federal court.  

“My son gave his life to save those trapped in the Twin Towers,” Welty says, “and it does not honor him that we violate our Constitution in retaliation for what happened on September 11.”