Time to Reckon with Torture
This past February, I was at a hearing in the Georgia House Defense & Veterans Affairs Committee to testify against a measure that would have had the effect of keeping the prison at Guantánamo Bay open by urging Congress to prohibit the transfer of Guantánamo detainees to the United States. I read a detailing how keeping Gitmo open endangers U.S. national security. In response, one of the committee members, , stated that not only would he not vote against the measure, but that he would further amend it to clarify that the men held at Guantánamo be subjected to "waterboarding, skate boarding, surf boarding, whatever." The fact that a state legislator would make light of torture was shocking enough. I was further taken aback that no legislator present for the hearing that day expressed outrage over the remarks.
This blasé official attitude towards torture, though extreme, is not unusual. Despite disavowing torture, the Obama administration continues to shield from civil liability, criminal investigation, and public scrutiny Bush administration officials who authorized torture.
This is all the more unacceptable as a and testimonies makes undeniably clear that detainees were tortured, abused, and, in over 100 cases, even killed in U.S. custody since 9/11. The documents further reveal that officials at the very highest levels of our government authorized and encouraged the mistreatment.
Through several Freedom of Information Act (FOIA) lawsuits, the American Civil Liberties Union (ACLU) has uncovered over 150,000 pages of formerly secret government documents related to the abuse and torture of prisoners in U.S. custody overseas.
The , which have informed much of what we know about the Bush administration's torture program, are also the basis of , an unfolding, online narrative that aims to give a full account of the Bush administration's torture program by bringing together government documents, investigations, and witness statements.
According to Larry Siems, the principal author of "These documents leave no doubt that under the Bush administration the United States violated domestic and international bans on torture and cruel, inhuman and degrading treatment, committing abuses we shielded from the eyes of the world. Few of these abuses have been properly investigated and still fewer prosecuted, and there is too little public conversation about our legal and ethical obligations to seek the healing and recovery of those we have abused."
One of the investigation records unearthed through the ACLU's FOIA lawsuit focuses on allegations of abuse committed by soldiers stationed in Fort Benning, Georgia. The Criminal Investigation Division of the Department of Defense initiated an investigation after Soldiers quoted in the article alleged that soldiers assigned to the 1/15th Infantry Battalion had, among other things, shot an unarmed Iraqi while he was fleeing, hog-tied him and physically assaulted him, and "dug inside wounds of EPWs [enemy prisoners of war] while they were incapacitated." The investigation determined that "there are indications that the allegation of abuse of an EPW while in custody could have occurred; however, there were no direct witnesses and the suspect is deceased." The investigation was closed on or about July 26, 2004.
Earlier this week, on the occasion of Torture Awareness Month, the ACLU of Georgia sponsored an event called "Reckoning with Torture: Memos and Testimonies from the 'War on Terror'", where local artists took the stage with politicians, activists, and professors to read from testimonials and memos that have brought the abuses to light.
One of the documents read was an excerpt from a legal memo signed by Jay Bybee, Assistant Attorney General for the Justice Department's Office of Legal Counsel, and issued to the CIA, in which the use of waterboarding was authorized:
In this procedure, the individual is bound securely to an inclined bench, which is approximately four feet by seven feet. The individual's feet are generally elevated. A cloth is placed over the forehead and eyes. Water is then applied to the cloth in a controlled manner. As this is done, the cloth is lowered until it covers the nose and mouth. Once the cloth is saturated and completely covers the mouth and nose, air flow is slightly restricted for 20 to 40 seconds due to the presence of the cloth. This causes an increase in carbon dioxide level in the individual's blood. This increase in the carbon dioxide level stimulates increased effort to breathe. This effort plus the cloth produces the perception of 'suffocation and incipient panic,' i.e., the perception of drowning. During those 20 to 40 seconds, water is continuously applied from a height of twelve to twenty-four inches. . . . You have orally informed us that this procedure triggers an automatic physiological sensation of drowning that the individual cannot control even though he may be aware that he is in fact not drowning.
In his confirmation hearing before the Senate Judiciary Committee in January 2009, Attorney General Holder declared that waterboarding amounts to torture.
Yet an ongoing investigation of the torture program initiated by the Justice Department in August 2009 excludes top-level officials. The administration also continues to withhold from the public key documents relating to the CIA's rendition, detention, and interrogation program; has urged courts not to allow torture victims to bring claims under the Constitution; and has invoked the "state secrets" privilege to prevent torture victims from having their day in court.
The administration must change course now by broadening the scope of the criminal investigation to include senior officials who authorized or encouraged the abuse, and by allowing the victims of torture to have their day in court. Doing otherwise will institutionalize impunity and do irreparable damage to the rule of law. And it will also no doubt lead to normalization and continued official endorsement of torture of the kind witnessed in the Georgia legislature.
At the event held earlier this week, spoke about this visit to Guantánamo a few years back:
The thought of being kept in detention for six years, eight years in these conditions is unbearable...as human beings, we often hear about atrocities being committed and wonder why? These atrocities happen because we and people like us allow them to happen. When will they stop? When we and people like us stop them.
It is past time for us as a country to reckon with torture. One hundred fifty thousand pages of torture documents demand 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
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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
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.