In an email sent to potential supporters a few days before releasing his book on CIA torture, Jose Rodriguez, the former head of the CIA’s Counterterrorism Center and its former Deputy Director of Operations, complained that his book, Hard Measures, would “be attacked from many quarters—mostly by people who will never read it.”
Having just finished reading Mr. Rodriguez’s book, I am confident that its readers will be critics, too. Hard Measures is a shameless defense of torture, and it is a dishonest one. At its core, the book has two central contradictions.
First, Mr. Rodriguez portrays the CIA’s “enhanced interrogation techniques” simultaneously as lawful and therefore unexceptional, and as exceptional “hard measures” that democracies must employ when necessary. There is an inescapable tension between his two narratives. In the first, we don’t torture because “enhanced interrogation” isn’t torture. In the second, we have no choice but to suspend the normal rules and to design an interrogation regime “specifically for these terrorists, in these circumstances, and for this period of time.” (p. 232, emphasis is Rodriguez’s).
Mr. Rodriguez attempts to evade this tension with wink-and-nod descriptions of the “enhanced interrogation techniques.” He resorts to euphemisms—“necessary roughness,” (p. 96), “unpleasant,” (p. 230), “shock value,” (p. 66), “harsh treatment,” (p. 103)—to obscure that they are torture. And in his (dissected by the ACLU’s Devon Chaffee here), he suggestively stated that the techniques were designed to let the detainees know that there was “a new sheriff in town.” His meaning was clear: the techniques carried with them a threat of even greater abuse. In Mr. Rodriguez’s world of dehumanizing abstraction, detainees “were brought to a point of cooperation” but not subjected to “gratuitous pain.” (p. 64).
The formula described would be familiar to many of history’s torturers: mistreatment carefully calibrated to communicate a threat of worse treatment but to . Rodriguez aims for a fiction: the “sweet spot” of torture.
We know from experience that Rodriguez’s defense of the “enhanced interrogation techniques” as lawful is wrong. Our own history and our State Department’s reports on the human rights violations of other countries teach us that some of the techniques employed by the CIA amounted to torture or to cruel, inhuman, and degrading treatment. They were war crimes, and they were domestic crimes. And at times even the CIA, Rodriguez reveals, recognized as much: “Long before the interrogation techniques became known and the subject of public and media debate, we elected to stop using some of them. Despite the fact that we had been given legal authorization, we simply weren’t comfortable with their use and never again employed them.” (p. 68).
Rodriguez also details the time that Senator Bill Nelson requested to be waterboarded by the CIA to decide for himself whether it was torture. The CIA refused, “[d]espite the fact that he appeared to be in great shape,” because they “wondered what would happen if he suffered a cardiac event during the experiment.” (p. 238).
Second, Rodriguez’s central claim that the CIA resorted to torture because it “heard the time bomb ticking,” (p. 253), is undercut by the facts as even he presents them.
Rodriguez asked the contractor who helped him design the torture program how long the “enhanced interrogation techniques” would take to work. The answer: “Thirty days.” (p. 62). How could the program be justified by the ticking-time-bomb theory if it wasn’t expected to work for thirty days? Rodriguez apparently didn’t expect it to: “We never suggested that the EITs would be a panacea. Once detainees became compliant, that did not mean that they would tell us everything they knew.” (p. 235). “Even the most severe technique, waterboarding, . . . did not produce immediate results.” (p. 92).
In attempting to claim the ultimate trophy sought by torture’s proponents—that torture led to the killing of Osama bin Laden—Rodriguez’s discussion is similarly strained: “I never said that the EITs were the immediate cause, or that they instantly led us to UBL. But without the EITs we might never have started on the long march that eventually allowed CIA analysts to come to the conclusion that UBL was probably holed up in Abbottabad.” (p. 109).
It is hard to accept that torture was necessary in the “long march” (nearly ten years, we now know) to locating Osama bin Laden. Two senators who have seen the evidence certainly . And it is hard to believe that a ticking time bomb was the true motivation for developing the program, when the program was not even designed to work for thirty days.
This is the problem with allowing fear of a threat to justify torture. As soon as the moral leap to torture is made, torture looks like the solution to every hard interrogation problem.
Late in his book, Rodriguez asks: “Could we have gotten the same information using typical FBI practices.” His answer: “Maybe.” (p. 231). Experienced interrogators are less equivocal. You can read their resounding opposition to torture in a few recent statements , , and .
Torture is illegal. It betrays our ideals. It is fundamentally un-American. And even if we were to accept that torture “works,” Rodriguez’s book shows why it is immoral. It dehumanizes not only the victim but the interrogator.
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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.