This was originally published in .
After more than a decade of denial and concealment on the part of our government, President Obama's recent acknowledgment that "we tortured some folks" felt like a milestone. Even in its spare, reductive phrasing, the president's statement opened up the possibility, finally, of national reflection, contrition and accountability.
But the president moved quickly to limit that conversation, painting those who authorized torture as "patriots" who were making difficult decisions under enormous pressure and urging the public not to feel "sanctimonious" because our military and intelligence leaders have "tough jobs."
Obama was wrong to do this, and not only because patriotism isn't a defense to criminal conduct. The deeper problem with the president's account is that it consigned to obscurity the true heroes of the story: the courageous men and women throughout the military and intelligence services who kept faith with our values, and who fought to expose and end the torture.
Missing from Obama's remarks was any recognition that the decision to endorse torture was a contested one. In fact, that decision was challenged over and over in interrogation rooms and conference rooms and at every level of government. Soldiers intervened to protect prisoners from cruelty. FBI agents refused to participate in abusive CIA and military interrogations. Military judge advocates general decried the withholding of Geneva Convention protections and rejected the arguments of civilian lawyers justifying torture. Military prosecutors at the U.S. prison in Guantanamo Bay, Cuba, resigned rather than prosecute prisoners on the basis of coerced evidence. Some CIA agents were so vocal about the abuses they saw in the field that they sparked a major agency investigation.
In every branch of the service, as well as in the intelligence agencies and diplomatic corps, men and women of conscience risked their careers to expose abuse and to confront those who authorized it. FBI interrogator Ali Soufan challenged CIA torturers at one of the agency's infamous "black sites," and later testified before Congress to debunk the CIA's claims that its cruel methods were effective. When military investigators alerted Alberto Mora, then Navy general counsel, about the abuse of prisoners at Guantanamo, Mora waged a campaign to reverse Defense Secretary Donald Rumsfeld's disastrous decision to endorse abuse by military interrogators. Guantanamo prosecutor Lt. Col. Darrel Vandeveld refused to prosecute a teenager he learned had been abused in U.S. detention in Afghanistan and Guantanamo, a decision for which Vandeveld was barred from the prosecutors' office, confined to his residence and threatened with dismissal from the Army.
Behind people like Soufan, Mora and Vandeveld were hundreds of other soldiers and intelligence officers who made no less risky decisions to stand against practices they knew were wrong.
Over the last decade, several of the architects of the torture program have written memoirs. Unsurprisingly, those who opposed the decision to authorize torture make only rare appearances in these accounts. Rumsfeld writes in his memoir, "Known and Unknown," that his licensing of brutal methods at Guantanamo in 2002 was "uncontroversial," and that his decision to reauthorize many of those techniques in spring 2003 was "unanimously supported" by a legal team. Readers of George Tenet, the former CIA director; John Rizzo, once the CIA's chief lawyer; or Jose Rodriguez, former head of the CIA's clandestine service, could be forgiven for thinking that no one ever broached the possibility of not torturing prisoners.
In telling their stories, the men who sanctioned torture cast themselves as patriots driven by their desire to protect the country. We assume they were patriots. What's inexcusable is that their accounts diminish or omit the stories of those who were equally committed to protecting the country — but who questioned their superiors and risked their careers to challenge what we now know were illegal, ineffective and immoral policies.
It is easy to understand why those who authorized torture would want to suppress the stories of those who opposed it. But neither the president nor anyone else should participate in this revisionism. To pretend that the decision to sanction torture was dictated by circumstance — that our leaders had no other choice, that anyone in their position would have done the same thing — not only excuses and justifies the terrible choice made by our political leaders but obscures the actions of the courageous men and women who stayed true to our foundational commitments even as their superiors abandoned them.
With the imminent release of the Senate Intelligence Committee's account of the CIA's interrogation program, the president will have other opportunities to tell the story of how our country came to endorse torture. As he does, he should tell the stories of the dissenters. He should honor their courage. It is time for the country to hear the history that torture's architects have sought for so long to suppress.
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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.