Why the ACLU is taking up the alleged New Jersey bomber's case

The civil rights group says that Ahmad Rahami has the right to counsel. Authorities, however, have prevented lawyers from meeting with him, saying he has not yet been properly served with charges.

After learning that the man facing charges for recent bombing attempts in New Jersey and New York City had been denied public council, on the basis on his reportedly unconscious state, the American Civil Liberties Union of New Jersey (ACLU-NJ) announced on Monday that it would temporarily take up the case.

“There is no doubt that the allegations in this case are extremely serious,” says ACLU-NJ senior staff attorney Alexander Shalom in an interview with The Christian Science Monitor, emphasizing the need to reconcile civil liberties with national security concerns. “But the constitutional principles are even more important.”

Ahmad Khan Rahami is accused of carrying out bombings in New York and New Jersey on the weekend of September 17. No people were killed in the bombings or bombing attempts, but the attacks, which took place just days after the 15th anniversary of September 11, left at least 29 people injured, and many others feeling rattled.

Mr. Rahami was captured during a shootout with police the Monday after the attacks occurred. He was wounded during the gunfight, leading to his hospitalization in critical condition.

Since then, Rahami has remained in the same New Jersey hospital, and court filings have described his condition as "incapacitated and intubated," as NJ.com reports. Prosecutors have prevented defense lawyers from meeting with him, or confirming whether he is unconscious. 

A handful of public defenders have attempted to see Rahami, including state public defender Peter Liguori and federal public defender Richard Coughlin, but their visits were blocked. Prosecutors in Union County, New Jersey, where Rahami has been charged with attempted murder of a police officer, said he was unconscious, the New York Times reported on Friday. Meanwhile, federal prosecutors argue that Rahami has not yet been arrested on federal charges, and that therefore his right to a lawyer has not yet been triggered.

The ACLU, however, argues that Rahami's inability to access a lawyer is a violation of his Sixth Amendment rights, which protect the right "to a speedy and public trial," and "to have the Assistance of Counsel for his defence," among others. 

"It is outrageous that Mr. Rahami has been in custody for a week yet has been denied the right to have an attorney visit him to confirm his condition and protect his constitutional rights," ACLU-NJ Executive Director Udi Ofer said in a statement. "Mr. Rahami, like all criminal defendants, has a right to a lawyer. Denying a defendant the right to counsel violates the Constitution and needlessly sacrifices civil liberties in the name of national security."

On Monday, an attorney for the ACLU-NJ entered a notice of appearance in federal court in Newark for Rahami, who faces federal charges for weapons of mass destruction, NJ.com reports. Until a public defender is appointed, ACLU lawyers will serve as Rahami’s legal representation.

This is not the ACLU’s first time acting as defense lawyers in unpopular cases: the group has defended neo-Nazis, pedophilia advocates, pornographers, and even conservative icons such as Rush Limbaugh and Oliver North. In July, the Monitor’s Jason Thompson reported on the ACLU’s decision to defend the Ku Klux Klan’s free speech rights in Georgia, where the group was then attempting to sponsor a section of Georgia highway.

It's just one example of the ACLU taking a case that, at first glance, could seem out-of-step for a group often known for defending liberal causes, from LGBT rights to fighting voter restrictions. 

But there are far greater things at stake than disagreement, free speech experts told the Monitor at the time. The government, they say, should not be allowed to prevent individuals from voicing ideas it does not agree with, or in Rahami’s case, availing himself of the right to legal counsel.

“Even if they’re ideas that are distasteful or even hateful, that’s a dangerous power to give the state,” Joshua Wheeler, the director of the Thomas Jefferson Center for the Protection of Free Expression, told Mr. Thompson in a phone interview. “Think what it would mean for a democracy if a government could do that: It would be the first step toward totalitarianism.”