Defense Attorneys at a Dead End: Representing Stateless Terrorist Clients Detained Indefinitely

• Author: Andrew Lee
• Position: J.D., Georgetown University Law Center (expected May 2022)
• Pages: 1113-1130

Defense Attorneys at a Dead End: Representing

Stateless Terrorist Clients Detained Indefinitely

ANDREW LEE*

INTRODUCTION

Nizar Trabelsi is currently held in jail on charges of conspiring to kill Americans

abroad, conspiring to use weapons of mass destruction, and supporting a foreign

terrorist organization (Al-Qaeda).

1

He had devised a plan to detonate bombs at a

NATO air base in Belgium that housed United States soldiers.

2

He is said to have

met with Osama Bin Laden and plotted a suicide bombing at the United States

embassy in Paris before his arrest for plans to bomb the air base.

3

He was extradited

to the United States in 2013 and has since awaited his trial.

4

Generally, when a citizen of another country commits a “crime of moral turpitude,”

has “multiple criminal convictions,” or is convicted of an “aggravated felony,” then

that individual is deportable.

5

Usually this person is deported to a country that they are

a citizen of or have other ties to and where they are accepted by that country.

6

However, what happens when there are no viable deportation destinations?

A stateless individual is one who does not legally belong to any country.

7

There are “an estimated 10 million stateless people worldwide.”

8

In the United

* J.D., Georgetown University Law Center (expected May 2022); M.A., Johns Hopkins University

(expected May 2022); B.A., Washington University in St. Louis (2017), © 2021, Andrew Lee.

1. See United States v. Trabelsi, 845 F.3d 1181, 1184 (D.C. Cir. 2017).

2. See United States v. Trabelsi, No. 06-cr-89 (RDM), Dkt.109, 2 (D.D.C. May 8, 2015); Tunisian Nizar

Trabelsi Extradited to US on Terror Charges, BBC (Oct. 4, 2013), https://www.bbc.com/news/world-us-

canada-24393770 [https://perma.cc/4XS3-NM9T].

3. See Belgium Frees Jailbreak Suspects, BBC, http://news.bbc.co.uk/2/hi/europe/7157235.stm [https://

perma.cc/2MSN-D9NQ] (last updated Dec. 22, 2007).

4. See United States v. Trabelsi, No. 06-cr-89 (RDM), Dkt.109, 2 (D.D.C. May 8, 2015).

5. 8 U.S.C. § 1251(a)(2)(A)(i)-(iii).

6. See Carol Rosenberg, U.S. Deports Terrorism Convict It Had Sought to Hold Indefinitely, N.Y. TIMES

(July 22, 2020), https://www.nytimes.com/2020/07/22/us/politics/terrorism-Adham-Hassoun-deported.html

[https://perma.cc/HQN5-57HU ] (“The United States has typically deported noncitizens at the end of their

sentences. But because Mr. Hassoun was born in Lebanon to a Palestinian family and did not hold Lebanese

citizenship, there was no obvious place to send him.”).

7. Bureau of Population, Refugees, and Migration, Statelessness, U.S. DEPT’T OF STATE, https://www.state.

gov/other-policy-issues/statelessness/ [https://perma.cc/XJR2-J253] (last visited Jan. 10, 2021) (“A stateless

person is someone who, under national laws, does not enjoy citizenship . . . in any country.”); Ending

Statelessness, UNHCR, https://www.unhcr.org/en-us/ending-statelessness.html [https://perma.cc/6NUC-

ZAAK] (last visited Jan. 10, 2021) (“The international legal definition of a stateless person is ‘a person

who is not considered as a national by any State under the operation of its law’.”).

8. Representing Stateless Persons Before U.S. Immigration Authorities, UNHCR (Aug. 2017), https://www.

unhcr.org/59e799e04.pdf [https://perma.cc/5U4R-R4ET].

1113

States, statelessness does not arise domestically due to “jus solis citizenship law;”

however, “individuals who were born elsewhere and have migrated to the United

States may be stateless.”

9

Nizar Trabelsi, who is a citizen of Tunisia, is essentially

stateless because the agreement made between the United States and Belgium

when extraditing Trabelsi prohibited Trabelsi from being deported to Tunisia.

10

Therefore, Nizar Trabelsi is also a stateless individual. As a stateless individual,

upon serving his sentence in the United States, he cannot be deported. Trabelsi

will either be freed or indefinitely detained.

It is not surprising that the general public would detest a terrorist’s continued

stay in the United States outside of detention. Especially post-9/11, public senti-

ments toward the criminal defendant rights of terrorists have eroded.

11

A growing

acceptance of sacrificing rights in the name of national security has become com-

monplace, increasingly so in sacrificing the rights of terrorist perpetrators.

12

Fortunately, for those willing to compromise defendant rights in the name of

national security, and unfortunately for the criminal defendants, a rarely used por-

tion of the Patriot Act has thus far been used to indefinitely detain convicted state-

less terrorists rather than releasing them upon completion of their sentence.

13

This portion allows the Attorney General to maintain custody of the terrorist and

allows for additional detention periods of six months to be added indefinitely if

the release of the individual “will threaten the national security of the United

States.”

14

Adham Hassoun is an example of one individual who had already finished

serving his sentence for terrorism crimes when he was detained indefinitely under

this portion of the Patriot Act.

15

Hassoun challenged his indefinite detention in court

but was deported to an undisclosed country before the legal showdown concluded.

16

If Nizar Trabelsi is convicted to a less than life sentence and is indefinitely

detained upon completion of his sentence as a result of his stateless status and

inability to be deported, he will likely challenge the indefinite detention.

17

His cir-

cumstances and legal arguments will be similar to the ones raised by Adham

9. Id. at 4.

10. See United States v. Trabelsi, No. 06-cr-89 (RDM), Dkt.70-1, 41 (D.D.C. Sept. 15, 2014).

11. See Susan N. Herman, The Limits of Advocacy: Lawyers for Terrorists/Lawyers for Torturers, 4 HARV.

L. & POL’Y REV., https://harvardlpr.com/online-articles/the-limits-of-advocacy-lawyers-for-terroristslawyers-

for-torturers/ [https://perma.cc/V2N9-M628] (last visited Feb. 18, 2021).

12. Id. (quoting Attorney General John Ashcroft “[T]o those who scare peace-loving people with phantoms

of lost liberty, my message is this: Your tactics only aid terrorists, for they erode our national unity and dimin-

ish our resolve. They give ammunition to America’s enemies.”).

13. See, e.g., Gary Craig, Adham Hassoun Deported; Was at Center of Terrorism-Related Courtroom Fight,

DEMOCRAT & CHRONICLE (July 23, 2020), https://www.democratandchronicle.com/story/news/2020/07/23/

adham-hassoun-once-convicted-terrorism-has-been-deported/5492094002/ [https://perma.cc/EQG7-895F].

14. 8 U.S.C. § 1226a(a)(2), (6) (2001).

15. See Craig, supra note 13.

16. See id.

17. Cf. id.; Hassoun v. Searls, 968 F.3d 190, 193 (2d Cir. July 30, 2020); Zadvydas v. Davis, 533 U.S. 678,

679 (2001); Tran v. Mukasey, 515 F.3d 478, 480 (5th Cir. 2008); Thai v. Ashcroft, 366 F.3d 790, 792 (9th Cir.

2004) (these sources all provide examples that are similar to Trabelsi’s situation).

1114 THE GEORGETOWN JOURNAL OF LEGAL ETHICS [Vol. 34:1113