Originally posted on .
Of the thousands of , a particularly remarkable one is a analyzing whether the 's "enhanced interrogation techniques" violate the Convention Against .
The memo concludes that they do not, but its most haunting passage appears in a footnote. The footnote describes the last waterboarding of .
According to the footnote, CIA interrogators determined that, after 82 waterboarding sessions, Abu Zubaydah was "compliant". Still, some officials at the CIA's headquarters believed that he was withholding information. Those officials overrode the objections of interrogators at the secret prison where Abu Zubaydah was being tortured, and they ordered that he be waterboarded yet again.
They dispatched officers to witness the session. The footnote does not describe what took place, but it does describe its result: nothing. The final waterboarding session was "unnecessary", and the envoy reported back, according to the clinical account of the footnote, that "enhanced techniques were no longer needed." What the footnote does not record is Abu Zubaydah's torture.
The memo captures some of the deeply disturbing aspects of the torture that took place in America's name. It illustrates the bureaucracy of the CIA's interrogation program. It also illustrates that, while there were too many interrogators willing to follow unlawful orders, those orders originated at the highest levels of government from leaders committed to the abusive interrogation regime they had authorized. Senior CIA officials meticulously directed every aspect of the interrogations, including the decision to waterboard Abu Zubaydah for the 83rd time.
I revisited the memo today, Tuesday 26 June, because it is , which commemorates the anniversary of the day, 25 years ago, that the Convention Against Torture became a binding legal obligation for the countries that signed it. On this day, the president typically issues a statement reaffirming America's commitment to the Convention Against Torture.
Until recently, these statements generally underscored the importance of investigating and prosecuting all acts of torture. But in the last few years, the reference to investigation and prosecution .
President Obama campaigned against the use of torture, but even before assuming office, he dismissed the possibility of investigating senior officials who authorized it. He explained that "we need to look forward as opposed to looking backwards." The explanation was as political as it was illogical: all crimes occur in the past. Looking forward and not backward means simply ignoring crimes.
But for the most part, Americans have heeded the president's advice. The outrage at the Bush administration's excesses, so palpable when the "torture memos" (including the 30 May 2005 memo) were released, has largely dissipated.
The administration has also been unsympathetic to claims for redress brought by torture victims. At the insistence of the executive branch, American courts have dismissed on procedural grounds every single lawsuit brought by victims of torture seeking official recognition of their ordeal and redress for their suffering. Perhaps the most pernicious of these procedural obstacles is the "state secrets" privilege, which the administration has invoked to shield grotesque abuses of prisoners from any judicial review.
Although the current administration released critically important documentation of torture and abuse of detainees (many in response to Freedom of Information Act litigation by the American Civil Liberties Union and other public interest organizations), it has staunchly opposed disclosure of other key records. It continues to withhold hundreds of CIA cables describing the use of waterboarding and other harsh techniques, hundreds of photographs of detainee abuse throughout Iraq and Afghanistan, and the presidential memorandum that authorized the CIA to establish its secret prisons overseas.
The initial stream of disclosures dried up as the administration took ever-more extreme positions in court, arguing, for example, that it could suppress descriptions of conduct that it conceded was unlawful. The result is that the public record of American torture is still incomplete.
There is another, related problem: the government has yet to create a single, official report documenting the post 9/11 abuses. There is hope that the Senate Intelligence Committee will fill the void when it completes its long-expected report on the CIA's program later this year. In the meantime, the ACLU today is launching the to help fill the transparency gap. Our database allows researchers and the public to conduct sophisticated searches of thousands of documents relating to the Bush administration's policies on rendition, detention, and interrogation.
When the president today champions the Convention Against Torture this year, it is worth comparing his rhetoric to the absence of action. Adherence to the requirements of the convention will always be politically fraught. But until we confront and account for the horrific abuses committed in the name of America's national security, we cannot turn the page on the shameful legacy of the last 10 years.
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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.