There are many awful legacies of the Bush administration's criminal embrace of torture in the months and years following the 9/11 attacks. Among the most agonizing — for the torture victims themselves, and for the lawyers who have represented them — is that not a single one of those victims has had . And not a single court that has been faced with a torture suit has addressed the core question of whether the victims' legal rights were violated.
This is, of course, a tragedy for the victims, who must live with the twin traumas of having been tortured by the state and turned away by its courts. But it is also a grave threat to the rule of law. Without definitive adjudication of the legality of torture, we face the risk that the door has been left open to future abuses.
"Today, we have a state of affairs that should be a source of shame to all Americans: not a single victim of the Bush administration’s torture regime has had his day in court. And not a single court that was faced with a torture suit has addressed the core question of whether the victims’ legal rights were violated"
Of course, the courts are not alone in turning a blind eye to torture victims; both the Bush and Obama administrations have actively subverted victims' attempts to obtain compensation and redress. Indeed, each of the democratic institutions that should have provided a check on abuses — and a remedy for the abused — has instead engaged in a kind of accountability shell game.
ACLU client Khaled El-Masri's case is illustrative. In a notorious case of mistaken identity, El-Masri, a German citizen, was kidnapped by the CIA in Macedonia, "rendered" to a CIA black site in Afghanistan, detained and tortured for several months, then released without apology or explanation. When a German reporter asked Secretary of State Condoleezza Rice whether the United States would provide redress for its horrific abuse of El-Masri, : "When mistakes are made, we work very hard to rectify them. I believe that this will be handled in the proper courts, here in Germany and if necessary in American courts as well."
El-Masri sought to bring his claims to those "proper courts," both in the United States and in Germany. But this was a bait and switch: rather than "handle" El-Masri's claims, the American courts told El-Masri, at the insistence of the executive, that he had come to the wrong place. "If El-Masri's allegations are true or essentially true," wrote a federal judge, "then all fair-minded people . . . must also agree that El-Masri has suffered injuries as a result of our country's mistake and deserves a remedy. Yet, it is also clear . . . that the only sources of that remedy must be the Executive Branch or the Legislative Branch, not the Judicial Branch." We now know — through documents released by Wikileaks — that Secretary Rice's State Department expended considerable diplomatic resources in seeking to terminate El-Masri's judicial proceedings in Germany, as well.
El-Masri was not alone. When five other victims of the CIA's extraordinary rendition program, also represented by the ACLU, sought judicial redress against a government contractor that had knowingly profited from arranging their torture flights, in effect, to look elsewhere: "Our holding today is not intended to foreclose — or to prejudge — possible nonjudicial relief, should it be warranted for any of the plaintiffs." The executive branch, the court insisted could "determine whether plaintiffs' claims have merit and whether misjudgments or mistakes were made that violated plaintiffs' human rights." And if that didn't work, "Congress also has the power to enact private bills." This was doubly absurd: Congress, of course, had already enacted public bills prohibiting torture — the very laws that the executive had violated and the courts had disregarded.
ACLU client Jose Padilla encountered a different version of the accountability shell game: two courts pointing the finger at each other. Padilla, an American citizen, was seized by the military from a New York jail, unilaterally designated an "enemy combatant" by the president, detained incommunicado without charge or trial in a Naval brig in Charleston, South Carolina, and subjected to vicious interrogations, chilling sensory deprivation, and total isolation. After three years and eight months of illegal military detention, Padilla was returned to the civilian justice system and prosecuted for crimes wholly unrelated to his dubious "enemy combatant" designation.
When Padilla sued his torturers, seeking one dollar in compensation as well as recognition that his rights had been violated, he was told, remarkably, that he had already had ample opportunity to air his grievances. "It is not as if the American judicial system has failed to afford [Padilla] significant opportunities to vindicate his legal rights," opined the judge. In particular, Padilla "was allowed in his criminal proceeding to raise issues of his detention in support of his motion to dismiss the criminal charges." But the judge declined to mention that when Padilla had attempted to raise those issues in his criminal case, he was told that he was in the wrong venue, and that he was "free to institute . . . an action for monetary damages or any other form of redress that he is legally entitled to pursue."
"It ain't me, babe," sings Bob Dylan in . "It ain't me you're looking for." This has been the unvarying response of our courts and our Presidents to the powerful legal and moral claims of torture victims. The best that can be said about this chronic institutional buck-passing is that it betrays a degree of shame.
That now belongs to all Americans. These terrible things were done in our name. And the failure to acknowledge the victims has been carried out in our name as well.
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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.