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The Senate report released earlier this week makes clear that the CIA tortured more men, and far more brutally, than anyone outside the intelligence community previously understood. Given the report's findings, the attorney general should appoint a special prosecutor who can conduct a comprehensive criminal investigation.
The argument for the appointment of a special prosecutor is straightforward. The CIA adopted interrogation methods that have long been understood to constitute torture. Those methods were used against more than a hundred prisoners, including many – at least 29 – whom the CIA itself now recognizes should never have been detained at all.
The methods were extreme, even grotesque. One prisoner, known as Abu Zubaydah, was slammed against walls, stripped naked, hung from his wrists, and waterboarded 83 times, once to the point of unconsciousness. Over the course of 20 days, he spent more than 11 days in a "confinement box" made to look like a coffin and another day and a half in a box that was, by design, too small to allow him to straighten his legs or his back. Abu Zubaydah's interrogators set out to destroy him physically and mentally, and they did.
But Abu Zubaydah's experience was unique only in its particulars. The CIA used the same methods against many other prisoners. A CIA interrogator observed that prisoners at one of the agency's black sites "looked literally like dogs who had been kenneled."
At a news conference on Thursday, the CIA's director, John Brennan, conceded that there is no evidence that the use of "enhanced interrogation methods" (as he called them) yielded more evidence than lawful methods would have.
But the more important point is that the use of these methods was a crime. It was a violation of the federal torture statute, which prohibits the intentional infliction of severe physical or mental pain or suffering. It was a violation of the War Crimes Act, which criminalizes grave breaches of the Geneva Conventions.
And it was a violation of the most fundamental human rights norms. The Convention Against Torture, which President Reagan signed for the United States in 1988, prohibits torture as well as cruel, inhuman, and degrading treatment. Under international law, the torturer is considered hostis humani generis, the enemy of all mankind.
"How will we encourage other nations to treat their prisoners with dignity when we have treated ours with such cruelty?"
If we don't hold our officials accountable for having authorized such conduct, we become complicit in it. The prisoners were tortured in our names. Now that the torture has been exposed in such detail, our failure to act would signify a kind of tacit approval. Our government routinely imprisons people for far lesser offenses. What justification could possibly be offered for exempting the high officials who authorized the severest crimes?
And our tacit approval of torture, besides calling into question our commitment to our laws and our values, would fatally compromise the United States' ability to advocate for human rights abroad. How will we encourage other nations to treat their prisoners with dignity when we have treated ours with such cruelty?
If we fail to hold accountable the people who authorized torture, we also invite future administrations to resurrect the policies that the Obama administration has retired. At Thursday's press conference, Brennan said the question of whether to use torture was a question of policy – not law – to be decided by policymakers. If we don't enforce the laws against torture, Brennan will turn out to be right.
The notion that future administrations may resurrect the torture policies surely isn't fantastical, when former officials – including Vice President Dick Cheney – continue to say that torture was effective and necessary, and when the current CIA director refuses even to acknowledge that the torture methods were in fact torture.
And let's be clear: The danger isn't simply that some future administration will revive the methods that the Senate report discredits. The larger danger is that our failure to hold accountable the people who authorized torture will send the message that any conduct, however unlawful and abhorrent, will be excused if it is executed in the name of national security. If we fail to hold accountable the torturers, we risk entrenching the dangerous view that the intelligence agencies responsible for protecting the nation's security are beyond the reach of the law.
Those who oppose the appointment of a special prosecutor argue that the Justice Department has already investigated the torture of prisoners. But the Justice Department apparently focused on instances in which interrogators overstepped limits set by senior officials, rather than on the culpability of senior officials themselves. Media organizations and human rights groups have asked the Justice Department to explain how it could possibly have concluded that no government official should be prosecuted for the abuse and torture of prisoners, but thus far it has declined to respond.
The attorney general should appoint a special prosecutor. For the last decade, officials who authorized torture have been shielded from accountability for their acts. The Senate report makes it clear – indeed, it could not make it any clearer – that impunity for torture must now come to an end.
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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.