The Obama Administration's 2 Faces on Releasing Evidence of U.S. Prisoner Abuse
There is too often a gap between the Obama administration's words and deeds when it comes to transparency on national security issues. Take, for example, whether the government should release information about the abuse of prisoners in U.S. custody.
In a decade-old Freedom of Information Act lawsuit the ACLU is still fighting, the administration recently told the court that it can't release some 2,000 photos showing prisoner abuse at Abu Ghraib and other military detention facilities in Iraq and Afghanistan. The reason, the government says, is because the pictures could be inflammatory and lead to attacks against U.S. interests abroad.
But in December, when asked about the possibility of violence in response to the release of the Senate report on the CIA's torture program, White House Press Secretary Josh Earnest :
[W]e believe so strongly in the value of actually following through on the release of this report, that it says something critically important about our values as a country, and that even though it may pose some risk to the security situation at diplomatic facilities around the globe – we can take prudent steps to protect those facilities, and that it is critically important – again, consistent with the values of this country – for the declassified version of the summary of this report to be released.
The president himself took a similar stand when Sony's decision to pull "The Interview" from theaters in the face of threats:
I think they made a mistake. . . We can't start changing our patterns of behavior any more than we stop going to a football game because there might be the possibility of a terrorist attack, any more than Boston didn't run its marathon this year because of the possibility that somebody might try to cause harm. So let's not get into that way of doing business.
In our FOIA lawsuit, the district court and the 2nd U.S. Circuit Court of Appeals both held, in 2005 and 2008 respectively, that the photos must be released. In 2009, President Obama announced that his administration wouldn't appeal to the Supreme Court, but then Congress enacted a law that carved out an exception to the FOIA. It gave the secretary of defense the authority to withhold abuse photos for three years if he certified that their disclosure would jeopardize national security. Defense Secretary Robert Gates did just that in 2009, and his successor, Leon Panetta, issued a blanket recertification for the entire collection of photographs in 2012.
The ACLU challenged the mass recertification as insufficient, and last August U.S. District Judge Alvin Hellerstein agreed with us, ruling that the defense secretary has to review each photo individually and give a reason for keeping it secret. The government pushed back, arguing that its process was in fact acceptable.
At a hearing last week, Judge Hellerstein told the government that his view had not changed, saying:
The government is not allowing itself to account. I think that's a mistake… [As] a judge of the court and the government, under laws I feel it's the obligation of the secretary of defense to certify each picture in terms of its likelihood or not to endanger American lives and why.
The judge asked the government how it would like to proceed, giving two options: The government could propose ways to comply with the August ruling, or it could say that the defense secretary does not want to certify the photos individually, in which case the judge would rule for the ACLU and the government could appeal. The government's response – coming in a letter to the court Wednesday – was to do neither of those things. Instead, it asked for clarification of what the government must do to comply with the judge's August ruling.
During last week's hearing, the judge warned the government about its use of delay tactics in this case:
[T]he consequence of what the government is doing is a sophisticated ability to obtain a very substantial delay. . . You appeal. By the time you get to the appeal, maybe two years go by – the issue is not easy – it may be longer. The downside for you is that you can always produce and disclose. And realistically, postponing the day of reckoning of something that is considered to be sensitive is itself a victory, because it postpones an unpleasant decision to a succeeding generation.
And yet now we have another delay tactic from the government (we made this point in a letter to the court today). The American public has a right to know what took place in the U.S. military detention centers, and the photos are essential to that right. Covering them up won't change what happened, and it certainly won't help stop more abuse from happening in the future.
UPDATE: The judge issued his order a few days later, giving specific instructions and setting a deadline of March 17 for the government to follow them or lose the case and have to appeal.
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Press ReleaseDec 2024
Free Speech
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Press ReleaseDec 2024
National Security
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VirginiaDec 2024
National Security
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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
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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.