Police Shouldn’t Just Film Themselves Being Santa’s Helpers

December 18th, 2014 No Comments   Posted in ACLU Nationwide
By Micah McCoy, ACLU of New Mexico

You may have seen the viral video making the rounds on social media: a millionaire "Secret Santa" donated $100,000 to the sheriff's department in Jackson County, Missouri, to hand out to the less fortunate in the community. The generous donor said that this year, he wanted to give law enforcement officers an opportunity to have a positive interaction with members of the community they serve. In the video, officers record the encounters in which they seek out people in run-down cars, homeless people, and other folks who look down on their luck. Instead of giving them a ticket, they give them a thousand dollars!

First of all, this is way cool. I'm even going to admit that I got a little misty-eyed when I watched the video. Shut up. You did too. But there is something troubling that lives beneath the surface of this heartwarming story.

It is an unfortunate fact of life for millions of people in America that if you drive a beat-up car, are homeless, or have the wrong color of skin, you stand a much higher chance of being targeted by law enforcement. And most likely, they won't be stopping you to make sure your kids have presents under the tree.

Where I live in Albuquerque, New Mexico, the Department of Justice has found that the police department has a pattern and practice of violating the civil rights of people in our city. Since 2010, the Albuquerque Police Department (APD) has shot 41 people, killing 27. Many of those killed were a lot like the people targeted in this heartwarming Christmas video. They were poor. They were homeless. They looked like they could have used some help. One particularly shocking incident in which APD officers gunned down a homeless man for camping illegally was recorded by an officer-worn camera, sparking city-wide protests and calls for police reform.

Knowing from our experience in Albuquerque how important officer worn cameras are, I asked the Jackson County Sheriff's Office whether their deputies wear cameras in the field all the time, not just when they're deputized by Santa. It turns out that they don't. They don't have the budget for it yet. That doesn't seem right to me. We should make sure officers are always able to wear body-worn cameras on duty, not just when they're handing out Christmas presents.

In the first year that the Rialto, California, police department outfitted its officers with body-worn cameras, complaints against police dropped 88 percent and officers' use of force fell by 60 percent compared to the previous year. Body worn cameras not only hold officers accountable, they also protect them from false accusations of wrongdoing, a Department of Justice review of body camera studies cautiously concluded.

What we have here then is potentially a win-win solution that makes both officers and the public safer when body cameras are used judiciously, meaning adequate privacy policies are in place and the technology isn't turned into a surveillance tool.

If we, like the Secret Santa in Missouri, want officers to have better interactions with the public, there are a few things we can do. We can pass better laws that don't criminalize people for being poor, sick, or marginalized, and we can make sure that law enforcement officers are equipped with cameras for everyday use.

These steps would go a long way towards the peace on earth and goodwill towards men we could all use a little bit more of this holiday season.

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Police Need to Make Body-Camera Policies Transparent

December 18th, 2014 No Comments   Posted in ACLU Nationwide, Free Future
By Sonia Roubini, ACLU Speech, Privacy, and Technology Project

Body cameras are a hot topic these days in the wake of the Ferguson and Eric Garner controversies, as well as President Obama’s announcement that he will seek $75 million in funding for police body cameras and training. Body cameras are an important public policy issue – the devices have the potential to function as a powerful oversight mechanism for police in departments around the country, but also (as we explain in our 2013 white paper) raise serious privacy issues. It’s important that these knotty issues be worked out transparently, in public, through the democratic process.

So are police departments putting good policies in place? In October, I tried to find out. I called and emailed the twenty largest Police Departments in the country, as well as a random sampling of an additional ten departments that attended the Police Executive Research Forum (PERF) conference in September, 2013 on best practices in the use of body cameras. Specifically, I sought information on which departments are using body cameras and on whether the departments’ policies are readily available to the public. My aim was to use this information to analyze the relative merits of each policy.

Only five of these thirty departments sent me their policies. The remaining twenty-five cited various reasons for not doing so: one department told me that they couldn’t share their policy as it was still in draft form; four reported having no policy; and four required a more formalized public records request in order to access the policy. The remaining sixteen departments either responded stating categorical unwillingness to send their policy, or simply did not respond. It’s also worth mentioning that of the five policies that we did receive, only one was publicly available on the police department’s website.

Many departments are still struggling to figure out how to integrate the cameras into their work. Many, commendably, have reached out to ACLU affiliates and other community stakeholders for input into their policies. But for a department to seek to keep its policy on this new technology secret is unacceptable. Now more than ever, we the people have the right not only to see these policies, but to be certain that they do in fact exist. Transparency is the only way that the public can be sure that body cameras will be used as a check against the abuse of police power, as opposed to yet another tool to increase that power.

The policies that I did receive came from Albuquerque, Cincinnati, Las Vegas, Los Angeles, and Oakland. These policies seemed to generally follow the PERF report’s recommendations, which laid out specifics on when the camera should be turned on (at all times when responding to calls for service), on data retention, and on who should and should not be allowed to view the policy. A couple of the policies, however, were hazy on whether or not use of the cameras should be voluntary. Still others did not specify that the cameras should be on during all calls of duty. In other words, these policies seemed to provide insufficient guidelines for ensuring that the technology would both protect the public against police misconduct, and protect police against false accusations of abuse.

Body cameras are a new technology with the potential to implicate a range of civil rights, and we are all—citizens, legislators, and police departments alike—still working to determine how they can best fit into our society. While there is no model for a “perfect policy” yet in place, it’s clear that their successful deployment relies first and foremost on transparency. This requires both that strong and transparent policies exist, and that they be easily accessible to the public. And by accessible, I mean easily found on police department’s websites, not tucked away in lengthy transcripts of meeting minutes. This is the only way to ensure that body cameras will be the win-win that we hope they can be.

"I’m Still Gonna Be Me": Leading the Charge for Change in Prisons and Everywhere Else

December 18th, 2014 No Comments   Posted in ACLU Nationwide
By John Knight, LGBT Project

I first met Tatyana a few years after the Wisconsin legislature passed the Inmate Sex Change Prevention Act – a cruel piece of legislation aimed at denying urgently needed healthcare to any transperson in custody in Wisconsin.

By that time, she had already signed up to be a plaintiff in the challenge to the Wisconsin law filed by the ACLU and Lambda Legal, and I had already met most of the other plaintiffs, including Kari, Andrea, and Lindsey. But even though I had a pretty good sense of what these women were facing, it was still hard to fathom how these women managed to survive the challenges and indignities of living in a male prison – a near universal experience for transgender women in U.S. prisons where corrections agencies house prisoners based on birth-assigned gender, rather than lived gender. Despite risk of retaliation, Tatyana and the other plaintiffs in Fields v. Smith all courageously stepped up and stayed with us for the long fight until a federal court struck down this law as unconstitutional in 2010.

Though Tatyana's challenge to Wisconsin's law was successful and several other federal courts have similarly found bans on treatment for gender dysphoria unconstitutional, too many transgender individuals in prison continue to fight for years to try to get their basic healthcare needs met or to be protected from assault. To assist them in their fight, the ACLU and NCLR today released a new "Know Your Rights" resource to help other transgender prisoners demand to be treated with dignity.

When Wisconsin legislators passed the Inmate Sex Change Prevention Act at the end of 2005, they decided to tell Wisconsin prison doctors how to practice medicine, barring prison medical staff from treating transgender prisoners with the basic care they need, regardless of the health consequences. Tatyana, Kari, Andrea, and Lindsey had all taken hormone therapy for several years, so denying them their hormone therapy was devastating for them – causing depression, anxiety, and terror as their minds and bodies suffered the impact of abruptly stopping the medication they relied on to survive.

Like so many people caught up in the criminal justice system, Tatyana had a difficult childhood and then got into trouble, committing the identity theft crimes that landed her in prison. Growing up she would lie in bed, confident she was a girl and praying to wake up the next morning with a girl's body only to be disappointed when she woke up the next morning with the same body that she believed betrayed who she was.

When she testified, Tatyana minimized the risks she faced as a woman in an all-male prison, saying that she avoided tight clothing and acting flamboyantly to keep attention from being drawn to her. But she had to admit that other prisoners and staff said offensive and threatening things to her because they saw her as gay, feminine, or just different.

Because of her gender identity, Tatyana was stigmatized. Staff and inmates harassed her and circulated rumors about her promiscuity. "I'm termed as a homosexual," she said. "I'm more prejudiced against, more closely watched."

One of the most disturbing parts of Tatyana's case was that the state of Wisconsin actually argued that the law was passed to help transgender women by preventing them from being assaulted by male prisoners because of their feminine appearance. The judge was asked to believe that the same Wisconsin legislators who said they wanted the law to prevent "prison extreme makeovers" at taxpayer expense had the best interests of these transgender prisoners at heart.

But when asked about whether taking hormones would increase her vulnerability, Tatyana's answers couldn't be clearer: Denying her hormones was not going to end her vulnerability to harassment and assault, "[b]ecause I'm still gonna be me. I'm still gonna be female."

Unfazed, Tatyana cannot turn back from living her life as a woman. "This is something that I've been dealing with all of my life and been attempting to take those steps to become, like I said, something that I've known I was in my mind all of my life." And, ultimately, the court soundly rejected the state's argument and struck down the Wisconsin law.

As difficult as it was for them to do so, Tatyana, Kari, Lindsey and Andrea spoke up ­– not only for themselves, but also for those who would come after them. Their struggles and their bravery – as well as those of Dee Farmer, Chelsea Manning, and many others – have made, and will continue to make, things a little better for those who follow.

My colleagues at the ACLU and NCLR hope that "Know Your Rights: Laws, Court Decisions, and Advocacy Tips" will help prisoners, their friends, family members, and other advocates to continue the fight to make things better for transgender people in prison. The courage and strength of people like Tatyana has moved the ball forward, but so much more work remains to be done.

We hope this new publication will assist with the work that remains.

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Honoring Chelsea Manning on Her 27th Birthday

December 17th, 2014 No Comments   Posted in ACLU Nationwide
By Chase Strangio, Staff Attorney, ACLU

From the United States Disciplinary Barracks in Fort Leavenworth, Kansas, where she is serving a 35-year prison sentence for convictions related to leaking classified information to Wikileaks, Chelsea Manning continues to speak out against the injustices she experiences and observes.

Over the course of the past four years, Chelsea has faced the death penalty, lived through solitary confinement, told the world she is transgender, and sued the federal government for withholding her medical treatment for gender dysphoria.

And today, on her 27th birthday, we pause to say thank you to Chelsea. We honor her bravery in coming out as transgender, fighting for her health care, and for speaking out about and making visible the injustice committed in our country's name.

In a birthday message to Chelsea, published in the Guardian along with similar messages from other leaders, poet Saul Williams wrote:

I know that you have been called names like 'traitor' and a host of others, but please never forget that for many of us who guard the flame that will one day burn the injustice out of empire you are a hero. Your actions have sparked more than global unrest, they have sparked the imagination of artists, engineers, teachers, and activists. You have given hope, even when those who would punish you for your actions remind you of your oath to God and country, your actions have reminded us that God would not favor countries more than humanity itself. And we applaud you, we buy you dresses and handbags (what size are you now?), pop bottles in your honor, and salute your wayward flag.

The past few weeks have witnessed the further unveiling of the flaws in the roots of our justice system. With the release of the Senate Intelligence Committee's "Torture Report;" the non-indictments of the white officers who killed Mike Brown and Eric Garner as well as the deaths of Tamir Rice, Akai Gurley, John Crawford III, and too many other black individuals at the hands of police officers; and the seemingly relentless murders of trans women of color in the U.S.; renewed calls for transparency and accountability have taken hold across the country and globe.

In times like these, people like Chelsea can give us hope in the possibility of standing up to make the world better, safer, and more just. But unlike the architects of the United States' torture program or the police officers who killed unarmed black men, she is spending the next three-and-a-half decades in prison. Chelsea's actions, as Edward Snowden wrote in his birthday message to her, "came with an unbelievable personal cost."

Chelsea, we stand behind you and fight with you as you continue to dare to be recognized as a human being.

"The very awareness of you, of your deeds and your fate, makes us free," Philosopoher Slavoj Žižek writes to Chelsea. "But this freedom is a difficult freedom – it is also an obligation to follow in your steps."

Chelsea leaked classified documents into the public domain because, in her words, "I want people to see the truth…regardless of who they are…because without information, you cannot make informed decisions as a public."

The fights for accountability, transparency, and justice continue. Hopefully through Chelsea's actions and the brave actions of so many others we can continue to be informed as we craft public narratives of who we are and who we want to be, as individuals, as communities, and as a country. "We should all be able to live as human beings – and to be recognized as such by the societies we live in," writes Chelsea. "We shouldn't have to keep defending our right to exist."

In a year that has brought so much tragedy to so many, let us stand in solidarity with those people, like Chelsea, who are leading us on the path toward justice and self-determination.

Read about Chelsea's fight for medical care while in prison here.

Read the Guardian's birthday tribute to Chelsea here.

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A Definite End to Indefinite Detention Is Within Reach

December 17th, 2014 No Comments   Posted in ACLU Nationwide
By Zak Newman, ACLU Washington Legislative Office

This piece originally appeared in Foreign Policy on December 10, 2014.

On his first full day in office as president, Barack Obama signed an executive order to close the prison at Guantanamo Bay, Cuba. Nearly six years later, his administration has finally begun delivering on its promise. Sunday's transfer of six detainees to Uruguay brings the total number of detainees transferred since the beginning of November to 13 — more than the total number of transfers than took place in all of 2013. That's a big deal. But let's not get ahead of ourselves.

While the administration has transferred detainees cleared for release in occasional bursts, it has failed to meaningfully address the plight of the more than 60 men held in indefinite detention without charge or trial. One cause of the failure is simple: in 2011, the Obama administration designed an administrative hearing mechanism called the Periodic Review Board (PRB) to review the cases of indefinitely held detainees. But since then it has made only inconsistent, half-hearted use of this tool. And now time is running out.

Under the PRB's original mandate, representatives from six defense and intelligence agencies, including the Department of Justice and the Office of the Chairman of the Joint Chiefs, sit on the boards and review the cases of all detainees designated for continued detention who face neither charge nor conviction. The PRB would then make a transfer recommendation to the secretary of defense for detainees it determined no longer represented a threat to the United States.

Granted, the PRBs only hold administrative hearings and cannot correct the injustice of detention without charge or trial. But they are a key pathway to freedom for those detained indefinitely at Guantanamo.

Yet the board did not convene for the first time until Nov. 2013 — over a year and a half behind schedule. The PRBs also have a large task in front of them, as over 40 percent of the prison's 136 detainees are eligible for a review. And since the PRBs began, they have done little to advance efforts to close the prison. In many cases, detainees and their representatives are only allowed to see summaries of the government's evidence against them. Even worse, detainees without private lawyers must rely on representatives provided by the government who may not even have a legal background. Attorneys or not, these representatives are not allowed to make use of any evidence except for the material provided to them by board administrators.

Despite this bias at the core of the process, the review board has cleared five of the detainees who have appeared before it (the six released on Sunday were cleared for release in 2010, before the board). But that is out of only nine men who have been lucky enough to appear before the board, a telling reminder of how excruciatingly slow the PRB process has been.

When the PRBs first began in November of last year, 71 detainees were eligible for review; today, 57 are eligible for their first review, but have not yet received it (this accounts for five prisoners exchanged last summer whose cases weren't reviewed). At this rate, it will take at least six years to complete the first review of eligible detainees. Even then, a favorable decision would not guarantee a detainee's release. Sixty-eight detainees currently held at the prison are cleared for release, the vast majority of them since 2010. Yet they remain behind bars.

Why the glacial pace? One rationale that NGOs monitoring the boards often hear from government representatives is that there's a lack of human resources. For each case the PRB hears, a special interagency body — the "Analytic Task Force" (ATF) — must compile all information relevant to the detainee's case and develop a summary of it. But according to government sources, there is no easy way to translate additional dollars for PRB operations into a faster pace for hearings given the unique mix of skillset, experience, and security clearance ATF staff need. Their hands are tied.

The excuse is as implausible as it is disappointing. In fact, four years ago, the Guantanamo Review Task Force — a separate interagency body created just days after the Obama administration took office to determine which detainees should be released, tried, or detained indefinitely — reviewed all 240 Guantanamo detainee cases. That process took just one year to complete. But while the task force designated 126 detainees as cleared for transfer, the majority of them remain at Guantanamo to this day. Then in 2013, the president appointed two envoys to oversee the prison's closure. Finally, the PRB process began later that year to review the cases of the men the Task Force originally saw as unfit for transfer or trial.

Because of the delays in implementing the president's commitment to close the prison at Guantanamo, detainees have begun losing hope. In a speech to Congress in spring 2013, Gen. John Kelly of U.S. Southern Command conceded that detainees were "devastated" that Obama had "backed off … of closing the facility." A hunger strike broke out. By the summer of 2013, more than 100 detainees were on strike. In December of last year, the Defense Department stopped releasing figures on the hunger strike, in an effort to undermine the protest.

Without addressing this blight, history will interpret Obama's legacy on Guantanamo as one that reinforced — not repudiated — indefinite detention without charge or trial. The president could and should release those detainees held at Guantanamo who have never been charged with a crime.

The only real impediment the PRBs suffer is the administration's failure to prioritize them. And if Obama is to make good on his promise to shutter the Guantanamo facility he must, at the very least, get the PRBs moving again.

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The Reign of Terror Ends at LA County Jails

December 16th, 2014 No Comments   Posted in ACLU Nationwide
By Margaret Winter, National Prison Project & Peter J. Eliasberg, ACLU of Southern California

For many years there's been an entrenched culture of savage deputy-on-inmate violence Los Angeles County Jails – violence as extreme as anything we've seen in decades of investigating some of the most notorious jails and prisons in the nation.

Beatings that left inmates with shattered bones, eye sockets, and teeth were commonplace. There was even a gang of deputies inside the jails, dubbed "The 3000 Boys," inked up with signature tattoos, who proved their allegiance to the brotherhood by beating up inmates. Inmates with serious mental illness – deputies called them "dings" – were prime targets for violent abuse.

Now, what was almost unimaginable only a few years ago is about to become a reality: a sea-change.

Today, the Los Angeles County Board of Supervisors entered into an agreement consenting to the entry of a federal decree in the ACLU's lawsuit Rosas v. Baca, which we filed in 2012 together with the firm of Paul Hastings LLP. The landmark decree will implement and enforce sweeping changes to the jails' policies and practices.

The roller-coaster ride that led to today's settlement began in 2008 when we published the first of a series of reports documenting widespread, organized deputy abuse against inmates. Sheriff Leroy Baca's spokesmen denied everything. On another occasion the Department's Chief of Custody Operations insisted that there was an organized conspiracy of inmates who lied about deputies to get them in trouble.

In September 2011, the ACLU issued a report that the sheriff couldn't shrug off: "Cruel and Usual Punishment: How a Savage Gang of Deputies Controls LA County Jails." The report was backed up by more than 70 sworn statements by victims – and by highly credible civilian eyewitnesses, including jail chaplains, a movie producer, and the ACLU jails monitor.

The ACLU report resulted in a firestorm of media coverage and public outrage. After years of frustrated reform efforts, the genie was finally out of the bottle.

In October 2011, the Los Angeles County Board of Supervisors – in direct response to the ACLU's report – created the Citizens' Commission on Jail Violence, a blue-ribbon panel of former federal judges and prosecutors, tasked with gathering evidence, holding public hearings, and making findings.

In January 2012, the ACLU filed its class-action suit against the sheriff. Ten months later, the Citizens' Commission issued a blistering final report, concluding that "The problem of excessive force in the county jails lies with the department's leadership."

The Citizens Commission findings galvanized public opinion. And over the next 18 months there was a series of new blows to the sheriff's department: federal civil rights probes, criminal indictments and convictions, and jury damages in the millions against sheriff's deputies in favor of their victims. A federal jury, in an unprecedented verdict, found Sheriff Baca himself personally liable for punitive damages to one of the victims. Baca announced his retirement shortly thereafter.

With today's settlement, the county has agreed to submit to a consent decree, backed by the enforcement powers of a federal court, to ensure they don't return to the bad old days.

For hundreds of thousands of current and future inmates of Los Angeles County Jails, and for their families and the greater LA community, this is a red-letter day. LA County jails have been a very dark and toxic place for a long time – and sunlight has turned out to be the best disinfectant.

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Detained for the Holidays

December 16th, 2014 No Comments   Posted in ACLU Nationwide
By Michael Tan, Staff Attorney, Immigrants' Rights Project, ACLU

This fall, Zadia* and her son Jose* came to the United States to escape years of physical abuse by her common-law husband. With the help of members of their church, Zadia and Jose fled Honduras. But rather than find refuge, they have been locked up for the last seven weeks in Karnes City, Texas, at one of the federal government's new detention centers for migrant families.

Their detention continues even though the government has found that Zadia and Jose have a "credible fear" of persecution – meaning there's a "significant possibility" they will win asylum. Add to this that they have family they can live with in the United States, and it makes no sense that they could be spending Christmas in immigration detention.

Zadia and Jose's story, however, isn't abnormal, which is why the ACLU today filed a nationwide class-action lawsuit to challenge the Obama administration's shameful policy of locking up asylum-seeking families in order to intimidate migrants from coming to the United States. The case is brought on behalf of mothers and children who have fled extreme violence, death threats, rape, and persecution in Central America and come to our country for safety. Like Zadia and Jose, each has been found by an immigration officer or judge to have a credible fear of persecution. Yet, instead of releasing these families as they await their asylum hearings, which the Department of Homeland Security has typically done, the agency now categorically detains and denies them release on bond or other conditions.

The Obama administration adopted this "aggressive deterrence strategy" following this summer's increase in mothers and children fleeing violence in Central America. Under this policy, the administration has put countless women and children behind bars as a warning to other migrants not to come here seeking refuge. This is ironic: Just as the Obama Administration has moved to make our immigration system more humane and protective of family values, it has doubled-down on the mass detention of mothers and children, all in the name of "border security." Eventually, the administration plans to hold thousands of mothers and children – including at a 2,400 bed facility in Dilley, Texas – with more detention beds to come and U.S. taxpayers footing the bill.

The mass detention of families is cruel, unnecessary, and unconstitutional:

Cruel: The government is punishing some of the most vulnerable among us – women and children who have legitimate asylum claims. America has now become a country that locks up families who have done nothing more than come here to ask for refuge.

Unnecessary: Families seeking asylum don't need to be put in jail. The vast majority of these women and children pose no threat to anyone, and they have every incentive to show up for court to pursue their asylum claims. Their imprisonment also imposes massive costs on U.S. taxpayers. The United States already spends about $2 billion annually on immigration detention, and the Senate estimates that family detention costs an average of $266 per person per day. In contrast, there are humane and effective alternatives to detention –including bond and ankle monitors—that start at just pennies per day.

Unconstitutional: Locking up mothers and children as a warning to other migrants is not what our detention system is for. Our Constitution and laws forbid the government from taking your liberty unless you've given it reason for doing so. But the government isn't even bothering to figure out if these women and children pose a danger or flight risk. And, in fact, the vast majority of these families are no threat to anyone and have strong incentives to show up for court and pursue their asylum claims.

Due process doesn't allow the government to lock up families by fiat. The Obama administration should stop using families as pawns and restore basic due process so that no mother or child is locked up arbitrarily.

*Names changed to protect their identities.

The case, RILR v. Johnson, was filed in U.S. District Court in Washington, D.C. Co-counsel are the ACLU's Immigrants' Rights Project, the ACLU of the Nation’s Capital, the ACLU of Pennsylvania, the ACLU of Texas, the Immigration Clinic at the University of Texas School of Law at Austin, and Covington & Burling LLP.

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After Torture Report, Lawsuit Tests U.S. Commitment to Accountability

December 16th, 2014 No Comments   Posted in ACLU Nationwide
By Jonathan Hafetz, Associate Professor of Law, Seton Hall University School of Law

A week after the release of the executive summary of Senate Intelligence Committee's torture report, the world's attention is rightly focused on the flagrant abuses committed by CIA officials in the name of national security. But it would be mistake to place the blame for America's descent into torture entirely on the CIA.

Torture was not simply the work of a rogue agency but the formal policy devised by the most senior officials in the U.S. government. And other agencies, besides the CIA, were involved at various points and to varying degrees, including the FBI.

The case of Amir Meshal is one example, and it tests both this country's commitment to the rule of law and its willingness to heed the lessons of the Senate torture report released last week. The ACLU is representing Meshal in the U.S. Court of Appeals for the D.C. Circuit, where we filed a brief on his behalf yesterday.

In early 2007, four FBI agents unlawfully detained Mr. Meshal, a U.S. citizen born and raised in New Jersey, in Africa. The agents suspected Mr. Meshal of terrorist activity, but instead of obeying the Constitution and the FBI's own guidelines, they effectively disappeared Mr. Meshal for four months and threatened with him torture and death. It was only after Mr. Meshal's scandalous treatment was reported in the media that he was returned home to his family.

The Supreme Court's seminal decision in Bivens v. Six Unknown Named Agents gives any American citizen whose constitutional rights are violated by U.S. officials the right to sue. The Justice Department, however, is seeking dismissal of Mr. Meshal's suit not because it disputes that Mr. Meshal was grossly mistreated, but rather because it claims that there is a "national security" exception to the American Constitution.

In June, a district court called Mr. Meshal's treatment at the hands of the FBI "appalling" and "embarrassing." But the court nevertheless dismissed his complaint, claiming that its hands were tied by precedent.

No such precedent, in fact, exists. The Supreme Court has not only refused to immunize federal officials from liability when they act in the name of national security, but it has also explained that the rationale underlying such liability applies more, not less, forcefully in such situations because of the potential for abuse. The Senate report should put to rest any doubts about that fundamental insight.

One major lesson of the Senate report is how the reliance on torture and other abusive interrogation tactics can spread across a government once they take hold. Another lesson is that simply exposing those abuses is not enough. The rule of law demands accountability.

Mr. Meshal's case is about more than his right to redress for the grave harm inflicted against him. It is about the right of all Americans to have their day in court when agents of their own government run roughshod over the Constitution and flout the rule of law.

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Those Who Approved Torture Shouldn’t Be Above the Law

December 16th, 2014 No Comments   Posted in ACLU Nationwide
By Jameel Jaffer, ACLU Deputy Legal Director and Director of ACLU Center for Democracy

This piece originally appeared at MSNBC.com.

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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Amidst the Budget Chaos, Long-Awaited Abortion Coverage for Women in the Peace Corps

December 15th, 2014 No Comments   Posted in ACLU Nationwide, Washington Markup
By Georgeanne M. Usova, Washington Legislative Office

The news out of Washington this weekend was dramatic as lawmakers hashed out an eleventh hour deal over a $1.1 trillion funding bill to narrowly avert a government shutdown. But amidst the chaos and special interest wins in favor of salty lunches and belching cows, there was an important victory that will have a real impact on the lives of the many brave women who serve as Peace Corps volunteers.

A long overdue fix will provide Peace Corps volunteers and trainees with abortion coverage in cases of life endangerment, rape, or incest – finally bringing their coverage in line with that of all other federal employees.

This puts an end to a provision long attached to yearly spending bills that has unfairly singled out women in the Peace Corps for inferior health care by completely prohibiting abortion coverage – with absolutely no exceptions. This lack of even the most basic coverage is particularly egregious considering that these brave women are often deployed to far-flung locations without access to safe and reliable medical care.

Women make up nearly two-thirds of all Peace Corps volunteers, and they sacrifice much in service to our country and to developing countries around the world. It is encouraging to see lawmakers from across the aisle come together to ensure that they no longer have to make sacrifices when it comes to their own health care.

The fix had support this year in the House and Senate by members of both parties, who agreed that it was time to bring an end to this inequity. A bipartisan supported bill to address the problem was introduced earlier this year by Senator Shaheen (D-N.H.) and Representative Lowey (D-N.Y.).This achievement is one to celebrate as the 113th Congress draws to a close.

Let's hope that the New Year brings more good news for women.

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