, the vice chief of Naval Operations, (PDF) at a yesterday afternoon. The review team interviewed the military leaders in charge of the detention facility as well as staff, interrogators and guards, and spoke with “about a dozen” detainees. The team also observed “enteral” feedings of hunger-striking prisoners, which entails inserting a tube down the detainee’s nose to his stomach to pump in a protein shake twice a day as the detainee is shackled to a chair and his head attached to a metal restraint with Velcro. Adm. Walsh concluded that the detainees at the prison are being held “in conformity with all applicable laws governing the conditions of confinement, including Common Article 3 of the Geneva Conventions.” Secretary Gates endorsed the report and sent it to President Obama over the weekend.
This is the under Section 6 of his January 22, 2009 Executive Order (PDF) to determine whether conditions of confinement at Guantánamo conform to Common Article 3 of the Geneva Conventions and to "other applicable laws." Common Article 3 provides that all detainees are legally entitled to humane treatment in all circumstances. Detainees may not be subject to “cruel treatment and torture” or “outrages upon personal dignity, in particular, humiliating and degrading treatment.”
As we all now know, the Bush administration’s views of what constitutes humane treatment have been far off the mark, and led Major General Antonio Taguba (who investigated the abuses in Abu Ghraib) that “there is no longer any doubt as to whether the current administration has committed war crimes.” It is hard to trust the current Pentagon leadership’s definition of humane treatment and, in fact, Adm. Walsh’s report ignores definitions already set forth in international human rights law and standards when it alleges that “there is no clear definition of `humane’ treatment, in either U.S. or international law.”
Adm. Walsh does not recommend changes that would address the many violations of international and domestic law that the ACLU and other groups, including the detainees’ own lawyers, have identified. Here are some initial points that the report failed to address or consider sufficiently:
- It does not take into account human rights law and standards (including the International Covenant on Civil and Political Rights) in the review even though such standards are part of the United States’ treaty obligations. In a letter the ACLU wrote to the Assistant Secretary of Defense in early February, at the request of the Pentagon, we urged the review team to ensure it considered these standards.
- It does not take into account that prisoners brought to Guantánamo as juveniles— including the four currently being held there (Omar Khadr, Mohammed Jawad, and )—are entitled to special treatment, including special housing, and reintegration and rehabilitation programs, under the United States’ binding treaty obligations.
- It does not adequately examine the use of force and violence against prisoners by the so-called “Immediate Reaction Force,” e.g., most recently, the mistreatment of Binyam Mohamed .
- It glosses over the fact that the use of sensory deprivation is still permitted. For example, sleep deprivation continues to be employed (and is enhanced by the use of 24-hour fluorescent lights), as are purposefully loud sounds of guard activity throughout the night, and 2 a.m. wake-up calls for recreational activities. More details of these abusive practices are recounted in the Center for Constitutional Rights’ .
- It legitimizes inhumane .
- It inadequately presents the input from NGOs and their critique of current conditions and does not provide information about which detainees were picked for interviews, and if they constituted an accurate representation of the larger population of detainees at the camp.
While the report does refer to the devastating effects of prolonged indefinite detention without charge on conditions of confinement, the review team denies that the current policies—of prolonged and indefinite detention—are punitive or constitute a form of collective punishment. The report instead effectively directs blame for the inhumane conditions in which they are kept on the prisoners themselves, alleging that these men, the vast majority of whom have been held without charge or process for eight years, engage in acts of “defiance, non-compliance with camp rules, and manifestations of self harm or attempts to injure or kill camp personnel.” Disturbingly, the report cites several U.S. federal court decisions and federal bureau of prison standards and polices to justify the current inhumane conditions at Guantánamo -- a stark reminder of the under U.S. Supreme Court interpretation of what constitutes cruel and unusual punishment.
No one denies that conditions at Guantánamo have improved over the years, especially with regard to interrogation methods, and the report does make some helpful suggestions, including that interrogations be videotaped, that the repatriation of detainees should be expedited, and that “further socialization is essential to maintain humane treatment.” The report must not be seen as vindication for seven years of illegal Bush detention and treatment policies at Guantánamo. Adm. Walsh’s 13-day review of Guantánamo, by design, provides only a snapshot of Guantánamo at this moment in time, and a questionable one at that, given the inability the Defense Department to police itself and what’s known about conditions at the prison camp. Moreover, Adm. Walsh himself acknowledges his team did not scrutinize whether the camp had complied with the Geneva standards throughout its history or interview former prisoners who claimed they were tortured.
The ball is now in the President’s court to permit that truly independent review and to improve conditions immediately. The ACLU and other human rights groups requested full access to the camps to do their own review of camp conditions in late January. As Adm. Walsh himself recognized, in a recommendation to President Obama:
[c]onsider inviting non-governmental organizations and appropriate international organizations to send representatives to visit Guantánamo, in a manner that does not jeopardize the current relationship with the ICRC and is consistent with security and safety of the detainees and guard force.
This will be another test of whether the President abides by his declared intention of breaking from disastrous Bush administration policies.
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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.