ACLU’S Safe & Free Advocacy

Accountability for Torture

When he first took office, President Obama made two related pronouncements: (1) America will not engage in torture (who would have thought that an American President would one day feel compelled to make this clear?), and (2) he will reform the way the federal government responds to Freedom of Information Act (FOIA) requests, and will insist on a presumption of disclosure of government information. These pronouncements were critically important to the ACLU because we’ve been leading the effort to use aggressive FOIA lawsuits to uncover evidence of torture by U.S. personnel during the Bush administration. Thus far, we’ve secured over 100,000 pages of government documents relating to abuse and torture of prisoners in U.S. custody, but we’re far from done.

Office of Legal Counsel (OLC) Secret Torture Memos

In April 2009, one of the biggest successes of our Accountability for Torture initiative occurred when the Department of Justice (DOJ) finally released OLC legal memoranda commissioned by the Bush administration to provide the legal framework for the CIA’s use of waterboarding and other interrogation methods that violate domestic and international law. Released in response to an ACLU FOIA lawsuit, the memos show that policies justifying and promoting the use of torture were devised at the highest levels of the Bush administration.

Defense Department Photos of Prisoner Abuse

In response to an ACLU FOIA lawsuit, the Defense Department in May agreed to release photos depicting the abuse of inmates by U.S. personnel in Iraq and Afghanistan at locations in addition to Abu Ghraib. The importance of these photos cannot be overestimated; they convey what words could not and undermine the Bush administration’s claim that prisoner abuse was aberrational and not systemic. The President then did an about-face and decided not to make the photos public, instead asking the federal court for more time to pursue other legal options.

CIA Videotapes of Waterboarding

The ACLU learned, again through the FOIA, that the CIA had destroyed 92 videotapes that captured CIA interrogators waterboarding prisoners. We persuaded the federal court to order the CIA to disclose records related to the destruction of these tapes. We want the public to know what was on those destroyed videotapes and who authorized their destruction in flagrant violation of the law. The new CIA Director Leon Panetta is trying to change the court’s mind, arguing, like his predecessor, that release of the records would provide ‘ready-made’ propaganda for our enemies.

CIA Internal Report on Interrogation Program

In our FOIA litigation, we discovered the existence of an internal report written by the CIA’s inspector general in 2004 about the agency’s secret detention and interrogation program. The government disclosed a version of the report last year but its contents were almost entirely blacked out. The report, we’re told, analyzes interrogations of “high-value detainees” in the “war on terror.” Congressional insiders have deemed it the “holy grail” because it details torture in unprecedented detail and casts doubt on the claim that torture “works.” A less redacted version of the report was supposed to have been disclosed to us weeks ago but the DOJ has repeatedly postponed the disclosure date.

Records about Treatment of Prisoners in Afghanistan

In April 2009, the ACLU filed a FOIA request seeking records about the detention and treatment of prisoners in U.S. custody at Bagram Airfield prison in Afghanistan. We believe that the U.S. is detaining about 600 prisoners there, including non-Afghans captured thousands of miles away. Some of them have been held as long as six years without charge. Many fear that Bagram is or may soon be the next Guantanamo.

State Secrets to Cover Up Extraordinary Rendition

– Mohamed v. Jeppesen DataPlan
In what has become the major court test of the Bush administration’s self-serving use of the “state secrets privilege,” the ACLU in 2007 sued Jeppesen DataPlan, a subsidiary of Boeing, on behalf of five foreign nationals who had been kidnapped and flown to U.S.-run prisons or foreign intelligence agencies overseas to be interrogated under torture and subjected to other cruel and degrading treatment as part of the CIA’s “extraordinary rendition” program. We believe that Jeppesen worked with the CIA to transport our clients for these illegal purposes. Shortly after we filed suit, the Bush administration intervened to assert the state secrets privilege, claiming that further litigation would undermine national security interests even though much of the evidence needed to try the case was already publicly available.

In April 2009, the 9th Circuit Court of Appeals reversed a lower court dismissal of the case, declaring that the government can invoke the state secrets privilege only with regard to specific evidence and not to dismiss the entire case. In June, the DOJ asked the 9th Circuit to reconsider its decision.

– Seeking Help from the United Nations
In June 2009, the ACLU joined with Geneva-based Alkarama for Human Rights in requesting that two U.N. Special Rapporteurs investigate the circumstances of Abou Elkassim Britel’s forced disappearance, rendition, detention and torture, and raise his case with the governments of the U.S., Morocco, Pakistan and Italy. A victim of “extraordinary rendition” and a plaintiff in our Jeppesen case, Britel is currently being held in a Moroccan prison based on a confession coerced from him through torture. We’re taking this unusual step in asking for international action because victims of the “extraordinary rendition” program detained at Guantanamo and other prisons throughout the world are being ignored by the U.S. government whose unlawful program landed them there in the first place.

Looking Forward

    While pursuing accountability and justice in the courts, the ACLU has called on:

  • Attorney General Eric Holder to appoint an independent prosecutor to investigate Bush-era policies and examine issues of criminal responsibility (as part of the Stop Torture Now coalition, we delivered 250,000 signatures on a petition to the Attorney General demanding the special prosecutor);
  • Congress to appoint a select committee to investigate the Bush administration’s torture program and to recommend legislative changes to ensure that these abuses are never repeated;
  • Congress and the President to enact the State Secrets Protection Act, which would unambiguously limit the state secrets privilege to specific items of evidence, thereby eliminating any possibility of the privilege being used for blanket dismissal of lawsuits and the removal of information from public scrutiny.

We also recently launched a series of web pages on our website that salon.com blogger Glenn Greenwald called “the single best resource for all documents and other information relating to torture and accountability efforts.” The site includes a rundown of the people who created the torture program, a searchable FOIA documents archive, and ways you can take action.

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Indefinite Detention

The ACLU has vigorously opposed the Bush administration’s policy of indefinite detention — the imprisonment of people for an unspecified period of time without charging them with a crime and without affording them a fair trial. If indefinite detention remains a policy of the U.S. government, it would fundamentally alter the character of our democracy by gutting the due process guarantees of the Constitution.

Al-Marri v. Spagone

Al-Marri was arrested in December 2001 at his home in Peoria, Illinois, where he was living with his wife and children. He was scheduled for trial in July 2003 on charges of credit card fraud and making false statements to the FBI, but on the eve of trial, President Bush took the extraordinary step of designating him an enemy combatant and had him transferred to solitary confinement in a South Carolina naval brig. There, he was held incommunicado for 16 months and subjected to torture and other abuse.

The ACLU challenged al-Marri’s indefinite detention, going up to the 4th Circuit Court of Appeals which ruled, in a narrowly divided decision, that the president had the legal authority to indefinitely imprison al-Marri. The U.S. Supreme Court refused to hear our appeal but thankfully did vacate the 4th Circuit’s opinion.

It took the Obama administration to correct this grievous wrong. Recently, the government finally charged al-Marri in federal court in Illinois with two counts of material support for terrorism. His case finally is where it belonged six years ago: in a legitimate court that can fairly determine whether al-Marri is guilty of a crime. The bigger problem, however, is not resolved because the government has not renounced the authority to hold U.S. residents in military custody as enemy combatants, nor even ruled out the possibility that al-Marri may be returned to military detention.

Habeas Corpus Petition of Mohammed Jawad

Mohammed Jawad has been in indefinite U.S. detention since he was captured in 2003 when he was possibly as young as 12. He is accused of throwing a hand grenade at two U.S. service members and their interpreter in Afghanistan. He was captured by Afghan forces who threatened to kill him and his family if he did not confess. This confession, which a military judge ruled was extracted from him by torture, continues to serve as the basis for his six-year long illegal detention at Bagram and Guantanamo.

In 2007, the government got around to prosecuting Jawad for war crimes before a military commission, assigning a decorated army reservist, Lt. Col. Darrel Vandeveld to be lead prosecutor. After investigating the case against the boy, Vandeveld left the military commission in September 2008 because he did not believe he could ethically proceed with prosecuting him. He submitted a 14-page statement in support of Jawad, describing the torture the boy had suffered throughout his detention and stating that the flaws in the military commission system make it impossible to harbor the remotest hope that justice is an achievable goal.

The ACLU filed a habeas corpus petition to get Jawad his day in (a real) court. Despite Vandeveld’s statements that there is no “lawful basis for continuing to detain Mr. Jawad” and that “there is no reliable evidence of any voluntary involvement of Jawad’s part with any terrorist groups,” the Obama administration argued that Jawad could not challenge his detention in federal court until after the military commission case against him is complete, even though the president himself has ordered a suspension of commission proceedings. In April the court refused to halt the habeas proceedings as the government had requested. This ruling emphasizes the importance of independent and speedy judicial review for prisoners who have been indefinitely detained.

Looking forward

The Bush administration created military commissions to try and mute international outcry over the indefinite detention of prisoners at Guantanamo. The U.S. Supreme Court ruled the first version of the commissions illegal. Candidate Obama campaigned against the second and current version of the military commissions but President Obama has been urging Congress to revive them with certain changes that would improve them but not cure their constitutional deficiencies.

Even more alarming are recent press reports that a strategy is taking shape in the White House that would authorize indefinite detention without charge or trial.

The ACLU is leading the fight in our nation’s capital against indefinite detention of any sort and any version of military commissions. The commissions were created, after all, not to enforce the law but to circumvent it. The system has been set up to ensure convictions, not to give the accused an impartial hearing.

We’re mobilizing our members to tell Congress and the President that indefinite detention is constitutionally wrong and that military commissions are no way to fix that wrong. Civilian and military courts are perfectly capable of dealing with classified evidence and ensuring national security while protecting fundamental rights. The U.S. has successfully prosecuted, in fact, more than 150 defendants in international terrorism cases in federal courts for crimes committed both before and after 9/11. If Congress or President Obama revives the military commissions, we’ll be back in court to challenge them.

Warrantless Surveillance and Illegal Searches

During the Bush administration, the government resorted to unchecked surveillance and overbroad searches of ordinary Americans as part of a broad pattern of executive abuses that used unsubstantiated assertions of national security to encroach on our privacy and free speech rights.

Campbell v. AT&T; Riordan v. Verizon Communications; Terkel v. AT&T

In 2006, the ACLU filed three lawsuits against telecommunications giants AT&T and Verizon. We sued to stop them from helping the Bush administration’s program of intercepting phone calls and emails between Americans and suspected foreign terrorists by providing the National Security Agency (NSA) with the personal phone records of millions of customers. Since September 11th, telephone companies have been providing the NSA with customers’ records without the customers’ knowledge and without any court warrant. In all, about 40 lawsuits were filed nationwide against telecommunications companies, all of which were consolidated before the federal district court in San Francisco. [The ACLU also sued the NSA directly, but that lawsuit was ultimately dismissed because the government used the state secrets privilege to prevent our plaintiffs from proving that they were the victims of the illegal wiretaps; this meant that they couldn’t establish their standing to sue.]

In June 2009, the federal court dismissed all the lawsuits, relying on the immunity provision granted by Congress last year to the telecommunications companies charged with participating in the NSA spying. We plan to appeal this ruling, arguing that this grant of immunity is unconstitutional.

Amnesty International USA, et al. v. McConnell, et al.

The telecommunications companies’ retroactive immunity for their role in the Bush administration’s domestic spying program was part of the FISA Amendments Act (FAA) of 2008. In addition to granting this immunity, this legislation vastly expands the surveillance power of the government. We are challenging the constitutionality of the surveillance provisions in federal court in New York on behalf of a broad coalition of human rights, labor, legal and media organizations. The FAA passed last July despite strenuous opposition from the ACLU and other privacy advocates.

The new law in effect tries to legalize the unlawful warrantless surveillance program President Bush authorized right after September 11th. The new law allows the government to collect phone calls and emails without obtaining a warrant, without probable cause, and without even informing a court which individuals or facilities it intends to monitor. It also gives the government the power to conduct dragnet surveillance of American’s international communications.

Oral arguments in this case were scheduled to be held last summer in federal district court.

Doe v. Holder

The ACLU filed this lawsuit in 2004 on behalf of an internet service provider (ISP) who had been served by the FBI with a national security letter (NSL). NSLs issued by the FBI require recipients to turn over sensitive information about their clients and subscribers. In addition to allowing the government to issue an NSL without prior court approval, the Patriot Act allows the government to impose a gag order on NSL recipients. Because the FBI imposed such a gag order on the ISP we represent, we were forced to file our lawsuit under seal and are still prohibited from even disclosing our client’s identity.

After much litigation, the federal district court ruled that the gag order provisions of the Patriot Act were unconstitutional and the 2nd Circuit Court of Appeals recently upheld that ruling. The Justice Department declined to seek Supreme Court review.

The FBI then had to justify its gag order on our client under the 1st Amendment standards set by the 2nd Circuit. The FBI recently submitted its justification to the court but unbelievably did so in secret. Even we are not permitted to see it! We’re currently in court battling for access to the FBI’s filing.

What we have here is this: the FBI is carrying out a secret investigation using secret guidelines and as part of that investigation they’ve compelled the secrecy of an ISP and are using a secret justification to do so.

Bierfeldt v. Department of Homeland Security (DHS)

In June 2009, the ACLU sued the DHS over needless and unlawful TSA search and detention practices. We filed it on behalf of Steven Bierfeldt, a traveler who was detained and harassed at the airport by TSA agents for carrying $4,700 in cash funds that he was carrying in connection with his duties as Treasurer of Ron Paul’s Campaign for Liberty. We believe Bierfeldt’s experience is part of a troubling pattern of the TSA more aggressively transforming its important but limited search authority into a license to invade people’s privacy rights.

In a related matter, this June, we filed a FOIA request to get U.S. Customs and Border Protection policies that permit officials to search the laptops and other electronic devices of travelers without any suspicion of wrongdoing.

Looking Forward:

The ACLU is calling on Congress to engage in a comprehensive review of our surveillance infrastructure to determine how surveillance can be done to ensure our safety without destroying vital 1st and 4th Amendment protections. Our advocacy has recently been boosted by the release of two new reports. A report released on July 10th by several government agencies’ Inspectors General concludes that little, if any, useful information was collected by the Bush administration’s warrantless wiretapping program. The second report, reported on in the New York Times on June 17, 2009, discloses that the NSA is exceeding the already overbroad limits granted to it for surveillance under the FAA.

We’re also urging Congress and the President to amend the Patriot Act, limiting its scope so that innocent Americans are no longer swept into government programs and databases intended for those suspected of terrorist activity.

Ideological Exclusions

Over the past few years, numerous foreign scholars, activists and writers ” all vocal critics of U.S. foreign policy ” have been barred from the U.S. either without explanation or on unfounded national security grounds. The ACLU strongly believes that this policy of ideological exclusion impoverishes academic and political debate, and denies Americans access to speech protected by the 1st Amendment.

American Academy of Religion v. Napolitano

The ACLU was in federal appeals court in March 2009 to present arguments in the case of Professor Tariq Ramadan, a leading Swiss scholar of Islam who was denied entry to the U.S. in 2004 because of his political views. Dr. Ramadan had lined up a position to be a tenured professor at the University of Notre Dame but the U.S. revoked his visa, citing a statute that applies to those who have “endorsed or espoused” terrorism.

In January 2006, we filed a lawsuit challenging his exclusion on behalf of the American Academy of Religion, the American Association of University Professors and the PEN American Center. After we filed suit the government abandoned its claim that Dr. Ramadan had endorsed terrorism, but it continues to exclude him because he made small donations to a Swiss charity from 1998 to 2002 which the Treasury Department later categorized as a terrorist organization because it had given some money to Hamas. Dr. Ramadan denies any awareness of any connections between the charity and terrorism and believed during the period of his donations that the charity was involved in legitimate humanitarian projects.

The federal district court ruled that the government could bar Dr. Ramadan from the United States but the 2nd Circuit Court of Appeals this month reversed that decision. The court ruled unanimously that the government must “confront Ramadan with the allegation against him and afford him the subsequent opportunity to demonstrate . . . that he did not know . . . that the recipient of his contributions was a terrorist organization.”

American Sociological Association v. Clinton

Professor Adam Habib is a renowned scholar and political analyst at the University of Johannesburg. He’s also a Muslim who’s been a vocal critic of the war in Iraq and of some U.S. terrorism-related policies.

In 2007 the government denied his application for a visa, claiming that he has engaged in terrorist activities. We sued that year on behalf of organizations that have invited him to speak here, including the American Sociological Association and the American Association of University Professors. This lawsuit is still being hotly contested.

Looking Forward:

The ACLU is pressing the Obama administration to put an end to the Bush-era practice of ideological exclusion. In addition, we’re urging Congress to amend the immigration provisions of the Patriot Act so that foreign scholars, experts, and advocates are not denied visas based solely on their beliefs.