In Secret Email, CIA’s Chief Lawyer Mocked ‘Pesky Little International Obligations’
In response to an ACLU Freedom of Information Act lawsuit, the government has released several documents that shed new light on Bush administration lawyers’ attempts to evade the absolute prohibition on torture and abuse of prisoners. The documents that purported to authorize the CIA to commit war crimes and include shocking new details.
One revelation is an email by John Rizzo, the CIA’s acting general counsel, which displays the ways in which government lawyers actively undermined the laws they were sworn to uphold. Rizzo, a key architect of the torture program, has , “[M]y major concern as the chief lawyer was: Were these techniques legal?”
But in a Justice Department Office of Professional Responsibility (OPR) report containing a secret 2003 email, Rizzo revealed his disdain for international human rights treaties like the Geneva Conventions as well as his confidence that the Justice Department’s Office of Legal Counsel (OLC) would find a way to undermine them:
It’s hard to read Rizzo’s email as anything other than a cynical acknowledgment of government lawyers’ willingness to subvert the law. Rizzo later claimed that his email “clearly appears to be an off-the-cuff, jocular remark.” But it’s only a joke because the OLC’s approval of torture was a farce: Its lawyers decided, in Rizzo’s words, to “interpret over, under and around” the law.
As the OPR concluded, OLC lawyers — including torture architects John Yoo and Jay Bybee — did not seriously analyze the legality of so-called “enhanced interrogation techniques.” Instead, OPR found these lawyers’ justifications were “illogical and convoluted.”
OLC’s work was so flawed that a government lawyer who played a key role in initially authorizing torture later denounced it. In 2002, John Bellinger, who was then legal advisor to the National Security Council, played a key role in the authorization for torture and abusive methods from the OLC. Bellinger later told investigators that “there was ‘pressure’ from the CIA from the outset to approve the program.”
Later, in a never-before-seen 2007 letter to the head of the OLC, Bellinger — in his new role as legal advisor to the State Department — criticized a draft OLC opinion that tried to declare the torture program in compliance with the Geneva Conventions.
Bellinger wrote that the opinion was “inconsistent with traditional U.S. treaty practice” and was “unlikely to be viewed as objective legal analysis.” Bellinger made the obvious point that combining forced nudity with “shackling a person in order to prevent sleep” could not be reasonably considered “humane treatment.”
Bellinger observed that “the world would find these acts particularly revolting” — as indeed it did, once the CIA program was made public. But Bellinger seems to have waited a long time to register his opposition: Torturing prisoners was no more lawful in 2002 than it was in 2007.
Perhaps as a result of the obvious revulsion the world felt for subjecting prisoners to forced nudity, the CIA eventually abandoned this practice. But a new passage from the OPR report shows how attached some within the Bush administration were to this particular method of degrading prisoners. The OPR report describes Steven G. Bradbury, a torture architect who headed the OLC from 2005 to 2009, as viewing the ending of forced nudity as “a very, very difficult policy decision”:
The new government disclosure also provides details of the CIA’s attempts to refine its brutality. Although we knew that the CIA’s Office of Medical Services (OMS) guidelines imposed a liquid diet on waterboarding victims to “reduce the risks,” the government had previously redacted what the “risk” was. The new release in the OPR Report shows that CIA medical officers eliminated solid food for waterboarding victims because waterboarding caused detainees to vomit (newly released text highlighted below).
Finally, the new release shows that torture was not just enabled by lawyers and doctors but also by senior officials, who willfully turned a blind eye to what was in plain sight. One example is Michael Chertoff, who was at the time the head of the Justice Department’s Criminal Division.
Chertoff was repeatedly briefed about the torture program. Instead of investigating and criminally prosecuting this illegal government conduct — or even objecting to it — Chertoff repeatedly expressed his desire to remain ignorant. At the outset of the program, at a CIA meeting held in July 2002, “Chertoff was reportedly uncomfortable with the subject and questioned why he was even being briefed.” Chertoff was filled in again in March 2003, but again said that “in retrospect,” he was not sure why he had been briefed. Even when torture led to the death of Gul Rahman at a CIA “black site,” Chertoff did nothing: To the contrary, he “expressed no interest or intention to pursue the matter of” Rahman’s death.
Chertoff’s shameful Justice Department legacy has persisted: No one responsible for the torture program has yet been held criminally accountable. — and with loud voices calling for the return of torture — it’s more essential than ever that we pursue accountability.
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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.