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

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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Ohio Just Defeated an Extreme Abortion Ban, but Don’t Get Too Comfortable

December 15th, 2014 No Comments   Posted in ACLU Nationwide
By Jennifer Dalven, Reproductive Freedom Project

Last week, the Ohio House voted on legislation that was breathtaking in its extremism: It would have banned all abortions after six weeks -- before many women even know they're pregnant.

First the good news: Legislators voted down the bill. That's a real and important victory for women in Ohio, and it does represent some progress. After all, the same legislation passed the House in 2011 before failing in the Senate.

But I'm just not able to get too excited about this. Yes, they defeated the ban, but celebrating the defeat of such an obviously terrible proposal is a hollow victory. While it's certainly good for the women of Ohio that the bill didn't advance, make no mistake about it: Extreme politicians remain fully committed to doing whatever they can to make sure that a woman can't get an abortion when she needs one. After their failure in Ohio, and the crushing defeat of similar measures suffered on election night, they might change their approach.

But one thing you can be sure of: They haven't changed their goal.

Already, leadership of the new majority in the U.S. Senate has said that one early priority will be to push a law that will prevent some women from getting the abortions they need. You can bet the House will do the same, and extreme politicians in the country's statehouses are itching to follow Congress's lead.

And because of the change in tactics we have to be even more watchful than we were before. That is because instead of being upfront about what they are trying to do by pushing bans, like the one defeated in the Ohio, more and more politicians are attempting to hide their motivations by pushing restrictions purportedly in the name of protecting women's health.

For example, we already expect legislators to introduce bills that target abortion providers. Publicly legislators will no doubt argue this about ensuring quality care for women.

There is just one problem. The medical experts have said loud and clear that these restrictions don't make women any safer. Abortion is already 99 percent safe, according to the Centers for Disease Control, and this bill would accomplish little beyond putting women at risk by blocking care. The medical experts know that these laws aren't about protecting women. They are about preventing a woman from getting an abortion if she needs one.

Think about it. Who should we trust when it comes to deciding whether something is good for patients: Doctors or politicians?

The same type of thing is happening in South Carolina, where some politicians have introduced a bill that requires doctors to go against best medical practices when they prescribe abortion medication and instead resort to an outdated protocol. Medical experts have rightly decried this as "bad medicine" that has nothing to do with women's health and everything to do with preventing a woman from getting a safe abortion if she needs one.

In Tennessee, politicians have introduced a bill requiring doctors to display and describe the ultrasound of a woman seeking an abortion, even if she has said that she doesn't want the doctor to do so. These types of laws don't keep a woman safer or deter her from getting an abortion. But they go a long way toward making many women feel ashamed, which is, of course, the real goal.

Unfortunately, the list goes on and on, and the new year hasn't even started yet.

It's tempting to view these alternative strategies as a sign of progress. But that would be a big mistake. What these bills really do is allow canny politicians to look "reasonable" by stepping away from complete bans on abortion. Yet all the while they're patting themselves on the back for advancing the types of laws that forced most Texas abortion clinics to close.

When politicians start advancing laws that will actually help women -- not just co-opting the language -- then we can all celebrate and declare a real victory.

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Now Can Torture Survivor Khaled El-Masri Have His Apology?

December 15th, 2014 No Comments   Posted in ACLU Nationwide
By Steven M. Watt, Senior Staff Attorney, ACLU Human Rights Program

The CIA's unlawful detention and torture of Khaled El-Masri has left him "a broken man," according to a McClatchy article published yesterday.

The story of El-Masri, an ACLU client, is especially poignant following the release of the Senate torture report summary – and the CIA response to it. The reports include the first public acknowledgement by the United States that the CIA's abduction, rendition, and detention of Khaled, a German citizen, were based on colossal mistakes. The reports also reveal the lengths to which the CIA went to cover up those mistakes and to avoid accountability for them.

Most of the facts of Khaled's case and the CIA's responsibility for wrongdoing were well-known long before the publication of the Senate torture report. They made headline news around the world shortly after he returned to Germany some five months after he was kidnapped in Macedonia and then stripped, beaten, sodomized, drugged, and flown halfway around the world to a fetid, secret CIA-run prison in Afghanistan. Khaled's case has also been the subject of a criminal investigation in Germany, numerous intergovernmental inquiries in Europe, and a decision of the European Court of Human Rights in December 2012. That ruling, in a case against Macedonia, found that Khaled had been unlawfully rendered and tortured by the CIA.

But until the release of the Senate report and the CIA's response, U.S. officials had steadfastly refused to either confirm or deny the United States' role. Although the two reports do not reveal all the gruesome details, they do provide important new information.

The public has learned that the CIA knew of its mistakes very shortly after it had wrongfully detained Khaled. According to the CIA inspector general, CIA officers "quickly concluded" that "[Khaled] was not a terrorist" after first questioning him in January 2005. Despite this conclusion, Khaled wasn't immediately released because, according to the Senate torture report, "different components within the CIA disagreed on the process for his release." It took the intervention of the National Security Council to settle the dispute and secure Khaled's repatriation to Germany in May 2005. That would confirm that, despite her claim to the contrary, Condoleezza Rice, a member of the council then and later secretary of state, would have known that mistakes had been made resulting in Khaled's wrongful rendition and detention when she visited Germany in December 2005.

That month Khaled sued the U.S. government over what had happened to him. Compensation was never his priority. He wanted an explanation, an apology, and reassurance that what he had endured wouldn't happen to anyone else.

In March 2006, Department of Justice lawyers sought immediate dismissal of the case, arguing that it involved state secrets that could not be disclosed in court. Porter Goss, then director of the CIA, told the court he could neither confirm nor deny the CIA's role in Khaled's rendition and detention, because doing so would harm U.S. national security by revealing means, methods, and operational details of the CIA's foreign intelligence interests.

The district court bought the government's arguments, dismissing the case in May 2006 without considering any of the voluminous and publicly available information confirming U.S. involvement in Khaled's rendition, secret detention, and torture. After the ACLU appealed, in November 2006, Justice Department lawyers pursued the same state secrecy arguments. In July 2007, the Bush Justice Department was persuading the U.S. Supreme Court not to review Khaled's case.

The Senate torture report reveals the deceit that's missing from this timeline, which helped deny Khaled his day in court.

As far back as January 2005, the CIA knew that it had made mistakes. The National Security Council knew of them shortly thereafter. In February 2006, the agency admitted to the House Permanent Select Committee on Intelligence that it had wrongfully detained five individuals. (The Senate report, based on the CIA's own records, puts that figure at 26.) One of the five was Khaled. The next month, on March 8 – the very day Goss was signing his state secrets declaration – the CIA admitted to five members of the Senate Intelligence Committee that it had detained and subsequently released Khaled "'when [they] reached a point in debriefings that required [foreign government] assistance' that was not forthcoming."

In other words, they released Khaled after interrogating him, realizing their mistakes, and failing to get German authorities to assist in his continued detention. In July 2007 – the same month that Justice Department lawyers were telling the Supreme Court it should not hear Khaled's case on secrecy grounds – the CIA's inspector general concluded that "[a]vailable intelligence information did not provide a sufficient basis to render and detain Khalid al-Masri (sic)," and that the "Agency's prolonged detention of al-Masri (sic) was unjustified." The CIA only responded to this finding in October 2007, admitting to the Senate Intelligence Committee that there had been no basis for Khaled's rendition and detention, and that the agency had wrongfully detained an innocent man. That same day, on October 9, the Supreme Court declined to review his case.

Despite all this, the Obama administration has so far declined to acknowledge Khaled's wrongful detention and abuse, and State Department lawyers have yet to respond to his petition to the Inter-American Commission on Human Rights, filed over six years ago. Protecting legitimate state secrets wasn't the CIA's primary interest. It invoked secrecy to cover up its embarrassing mistakes – which included egregious human rights violations – and to avoid accountability.

Now that the CIA's mistakes and atrocities are a matter of public record, the government should take responsibility for them and make amends. As an important first step, the United States should provide Khaled – and other victims of CIA torture – with a full, official, and public accounting of what the CIA did to him, and grant him an apology, compensation, and counseling for rehabilitation.

The law and basic decency demand no less. And it might help a broken man start to heal.

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ACLU to Congress: We Need a Comprehensive LGBT Non-Discrimination Bill

December 15th, 2014 No Comments   Posted in ACLU Nationwide, Washington Markup
By Ian S. Thompson, ACLU Washington Legislative Office

Did you know that there are just 18 states that have explicit workplace non-discrimination protections for LGBT people, or that a mere 13 states have such protections in place for LGBT students?

On Tuesday, the director of the ACLU's Washington Legislative Office delivered that message to the Senate Judiciary Committee during her testimony on the state of civil and human rights in the United States. "Despite remarkable progress in recent years in expanding the number of states with the freedom to marry for same-sex couples," said Laura W. Murphy, "there is a startling dearth of explicit non-discrimination protections for LGBT Americans."

In July, the ACLU, along with other leading LGBT rights organizations, announced a withdrawal of support for the Employment Non-Discrimination Act (ENDA) due to a provision – unprecedented in federal law – that would have given religious organizations carte blanche to discriminate based on sexual orientation and gender identity. At the time, we said that our recommendation was simple: to treat anti-LGBT discrimination the same as other prohibited forms of discrimination under our nation's civil rights laws.

In her testimony before the committee, Murphy continued:

From the ability to obtain a public education free from discrimination to being able to work and find housing without fear of being rejected because of who you are or who you love, the lack of explicit protections for LGBT Americans is unacceptable.

Murphy concluded her testimony by calling on Congress to pass a comprehensive LGBT non-discrimination bill that bans discrimination based on sexual orientation and gender identity. Amazingly, such a bill has never been introduced in Congress.

In 2015, it's time – beyond time – to change that.

Going forward, we must take a holistic approach to the many ways in which discriminatory treatment negatively impacts the lives of LGBT people. The time has come for a comprehensive bill that builds on a half century of civil rights protections and will further the long-sought goal of explicit, effective, and, above all, equal federal non-discrimination protections for LGBT people.

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A Supply-Demand Curve for Privacy

December 15th, 2014 No Comments   Posted in ACLU Nationwide, Free Future
By Jay Stanley, Senior Policy Analyst, ACLU Speech, Privacy & Technology Project

I recently wrote about some polling that Pew did on privacy, and its finding that Americans have very low confidence in the privacy and security of electronic communications channels. People feel more or less communicating on landline telephones, for example, but highly insecure using online chat.

On further reflection, it occurs to me that when people think about the privacy of their communications and other activities, there are two variables:

  1. How much confidence they feel that a given medium will provide privacy. When people use public tweets to communicate, they know their conversation is open to the world. On the other hand, if they’re meeting for face-to-face negotiations in the middle of a swimming pool (as in this scene from the 2000 movie Traffic) they will have a lot more confidence that they’re not being overheard. And there are many gradations in between those two extremes. The confidence that Americans have in their everyday communications media such as email and online chat can depend heavily on the nation’s policies around eavesdropping, lawful interception, and the use of encryption. (Pew has a chart showing the levels of confidence Americans reported in different media.)
  2. How much privacy people feel they need for a given activity. In a conversation about what groceries to buy, for example, people may not think or care very much about privacy. On the other hand, if they are discussing very sensitive personal matters such as their medical or sexual lives, confidential business matters, or political organizing in a hostile law enforcement environment (think Occupy protesters), they’re likely to feel the need for a very high level of assurance.

When the two curves cross—when the amount of privacy that people feel they need exceeds the amount that they will get from a given communications medium or other system—people will switch to a different medium, even though that medium is less efficient.

We can imagine a “supply-demand curve” akin to those used in economics that charts the two measures:

Graphic of supply/demand curve by Steve Dashiell via Flickr

The blue line in the above chart represents the amount of privacy that people might desire across the range of their activities, with the lower left being something boring like emailing a grocery list and the upper right being a sensitive personal, business, or political matter. The red line represents the faith that they have in various communications channels, with the upper left being an in-person swimming pool chat, and the lower right being a public forum such as Twitter. As faith in the privacy of a particular medium rises, the more sensitive communications people are willing to use it for, and as the sensitivity of a communication rises, the more such faith they will demand.

To take an example from recent headlines, let us imagine a person who is contemplating their transportation options. Perhaps they are going to work, or going to visit a secret lover. Last month, they might have used Uber for either trip, but in the wake of that company’s privacy scandal, to meet their lover they might go to the trouble of hailing a taxi and paying cash. Naturally, individuals will differ both in how much privacy protection they consider various activities to merit, and in how much trust they have for various parts of the communications infrastructure. A more privacy-conscious person might use the regular taxi for both trips.

Maybe an economist could extend the analogy in productive ways—and maybe somebody has already pursued this line of thinking somewhere. But it seems like a way to think a bit more clearly about what is at stake when we consider policies that will or will not ensure greater amounts of privacy over various communications media.

Harrowing Tales of the Wrongly Deported: How Border Patrol Officers Flout the Law and Destroy Lives

December 15th, 2014 No Comments   Posted in ACLU Nationwide
By Sarah Mehta, Researcher, ACLU Human Rights Program

This was originally posted on The American Prospect.

In 2008, Nydia, a transgender woman, fled physical and sexual attacks in Mexico and was granted asylum in the United States. She was saving money to apply for lawful permanent residence (a "green card") when, in 2010, her mother died. Nydia returned to Mexico for the funeral. "I was afraid [to go back], but in the moment, I just blocked out everything that had happened to me," she said. "When I got there, I thought 'Oh my God, why am I here?'"

When her family in Mexico rejected her, Nydia found herself alone, attacked by a gang who tried to rip out her breast implants, beat, robbed, and raped her. Nydia returned to the United States border and told American border officers that she had been granted asylum and was attacked again in Mexico. They wrote down her story but ordered her deported anyway. She tried again to return to the United States but was arrested by border officers who verified that she had asylum. Then, once more, they deported her to Mexico with a 20-year ban on returning. In Mexico, Nydia was repeatedly attacked and then kidnapped by Los Zetas, a cartel that forced her to work as a sex slave. She eventually escaped, fled back to the United States, and this fall finally became a lawful permanent resident.

Immigration advocates just celebrated a reprieve for our nation's rampant deportation machinery. Under President Obama's executive action plan, more than four million individuals can apply for temporary protection from deportation—a hard-won victory for noncitizens and their families. But Nydia's story shows that having rights or claims to be in the United States, even under current law, just isn't enough. At the U.S. border, immigration enforcement officers decide whose rights matter. The new Executive Action does not change this—if anything, it could make the border even more lawless, as the plan continues to rely on expanded militarization and immigration enforcement at the U.S. border. The apparent assumption is that those apprehended and deported "at the border," which can stretch 100 miles from the actual border, are strangers at our gate with no rights or claims to be there—and that we can trust immigration officers to tell who is of the deserving and whose rights are disposable.

We're risking a lot on those assumptions, and both are wrong.

The Deportation Machine

In 2013, the United States conducted 438,421 deportations. In more than 363,279 of those deportations — over 83 percent — there was no hearing, no judge. Instead, individuals were deported through a cursory and often coercive process where the same presiding immigration officer acted as the prosecutor, judge, and deporter. Though these officers (think immigration police) carry a gun instead of bang a gavel, they wield enormous power like a judge: they decide whether someone can stay with their family or claim asylum or work in the United States — or can be banished in a blink.

The ACLU (my employer) just completed a year-long investigation into who is deported without a hearing and why that basic opportunity to present their claims and defend their rights matters. Those deported include asylum seekers who come in search of protection and are instead deported back to danger. They include longtime residents with U.S. citizen children who might now qualify for relief under the President's executive action (if they are still in the United States, and many are not) but who must rely upon border officers to identify them. They even include lawful residents—U.S. citizens, people with work and student visas, and people who've already won the right to be here. Right now, people who already have rights to be in the United States are being deported, not because the law excludes them but because recognition of those rights depends upon the whim and mercy of individual immigration enforcement officers.

This means the overwhelming majority of deportations are not authorized by judges with training in immigration law but by agents from Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE). CBP in particular is an agency plagued by thousands of abuse allegations—from rape to corruption to murder. The nation's largest law enforcement agency, CBP is also its most lawless. But while we know that many CBP officers act irresponsibly and with apparent impunity, we must not ignore the enormous and growing responsibility these agents have to determine the fate of those they arrest.

Today there are over 40,000 CBP officers authorized to act like judges but without legal training. They decide in a matter of minutes whether someone is a stranger or a citizen and whether or not to issue a deportation order that could expel a person for five, ten, twenty years or for life. There is no evidence or lawyer required and no independent review of the order. If an officer makes a mistake and deports a law-abiding resident or visitor or someone who could win her case in immigration court, there is virtually no way for that person to correct and expunge the deportation order.

And sometimes, judicial review would be too late, anyhow. Just ask Nydia and others like her.

The Erroneously Deported

It is predictable that people with rights or claims to be in the United States will be erroneously deported by border officers. Immigration law is notoriously complicated and, often, the interviewing officers don't speak the same language as those facing deportation. But some of the "errors" appear to be the result of coercion, manipulation, and fear.

Braulia A., a mother of four U.S. citizen children and one son born in Guatemala, lived in the United States for almost 15 years. She left for one day and was ordered deported by CBP officers at the California-Mexico border. Braulia told the officers that gangs were threatening her family in Guatemala and that she needed help; they deported her there anyway. Her eldest son joined her back in Guatemala and was murdered by a gang. After his funeral, the same gang raped and shot Braulia, leaving her for dead. She survived and fled back to her family in the United States where, after months of detention, she finally won her immigration case.

Veronica V., a mother of three U.S. citizen children who lived in the United States for almost 20 years before her expulsion, was arrested by ICE just beyond the border and coerced into accepting "voluntary" return. After hours alone in a detention cell, Veronica recalls, "I told [the officer] I wanted to talk to my husband. He said, 'You are not going to talk to your husband. What you are going to do is sign this salida voluntaria or you are going to jail.' That is when I signed because they said there were bad people in jail who could do something to hurt me." Even Veronica's lawyer was not allowed to speak with her before Immigration and Customs Enforcement officers dropped her across the border in Mexico.

Several U.S. citizens have also been deported at the border without a hearing. Border officers deported Maria de la Paz, a U.S. citizen, because they did not believe a U.S. citizen would speak only Spanish. Maria spent years in Mexico trying to return to the United States and only did so successfully this summer, after finding an attorney and many months of litigation.

This isn't justice; it's administrative convenience and willful distortion of the laws. And these stories—only a sampling of the dozens we documented this year—are not exceptional but all too terribly common.

Deport First, Ask Questions Later

There isn't a lot border officers are required to ask or screen for at the border. These interviews are often perfunctory and adversarial, with little opportunity for the person, suddenly facing deportation, to ask questions, call a lawyer, or provide evidence to show they are lawfully entering or living in the United States.

For years, the one thing that border officers have been required to ask is whether the person is fleeing danger and afraid to return to their country. But too often, officers aren't even doing that.

In 2005, the United States Commission on International Religious Freedom released a report, commissioned by Congress, after watching expedited removal interviews at the U.S. border. In 50 percent of observed interviews, arriving non-citizens were not informed they could ask for protection if they feared persecution or torture in their home country. In our interviews this year with 89 individuals deported in the border zone, 55 percent said they were not even asked that basic required question about whether they were fleeing persecution or torture (or were not asked anything in a language they understood.) Of those who were asked and said yes, 40 percent were deported anyhow without even the chance to ask for protection.

President Obama's Executive Action is an important step towards recognizing the rights of longtime residents whose lives are part of the fabric of our country. But it comes too late for many people who were unjustly deported—some, to their deaths. Moreover the plan relies upon immigration enforcement officers who may have a fundamental conflict of interest to determine who has a right to benefit and who can be spared deportation. Many officers operate under an apparent "deport first, ask questions later" policy, which is cavalier at best and callous endangerment at worst. It ignores that most people cannot get even illegal deportation orders reviewed and rescinded.

This is not an inevitable system. Officers have discretion to refer a person to court to have their claims reviewed. Why not do that? Why not give people a real chance at justice, when the stakes are so high? We can give people with strong claims to be in the United States an opportunity to be heard and to defend their rights. And in the meantime, we can create better guidance, oversight, and accountability for officers in using—responsibly— their tremendous power. Our laws and our communities are made stronger when we care about fairness and when we don't sacrifice justice for arbitrary expedience, particularly when lives are on the line.

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Shakedown: Border Patrol’s “Confiscation” of Migrants’ Money, IDs, Cellphones Exposes Them to Danger After Deportation

December 12th, 2014 No Comments   Posted in ACLU Nationwide
By James Lyall, Border Litigation Staff Attorney, ACLU of Arizona

One of the cornerstones of American law is the right to property. That protection, however, doesn't seem to apply if you're a migrant.

A report released this week by the Tucson-based humanitarian organization No More Deaths details the Border Patrol's and other law enforcement agencies' common practice of permanently confiscating the money and other belongings – including IDs, cellphones, medicines, and personal keepsakes – of those in its custody without due process of law. These practices, says the report, continuously put thousands of deported migrants into harm's way.

Take, for example, what happened to Alejandro.

He was detained by Border Patrol agents who confiscated his belongings – $226.24 in cash, a cellphone, a change of clothes, and even his Mexican voter ID card. After serving 60 days in jail, Alejandro was placed on a bus at 3:00 a.m. with a group of people also being deported to Mexico. The bus was supposed to stop and pick up their belongings from Border Patrol, but it never did. Alejandro found himself on the street in Mexico in the middle of the night, with only the clothes on his back. He appealed to the Mexican consulate for help and was told that if his belongings had not been destroyed already, it would take at least three months to recover them. Alone and destitute in an unfamiliar town, he had to fend for himself.

Other migrants reported outright theft of their money by authorities. Manuel was detained by Border Patrol while crossing the border near Douglas, Arizona, and turned over to U.S. Marshals who confiscated$360. The one who took the money told Manuel not to expect it back because he planned to use it to buy beer over the weekend. Several other detainees heard the comment and protested, but Manuel never saw his money again.

In some respects, the findings and stories from this report are not new. In fact a 2013 report by the University of Arizona estimated that fully one in three people deported from the U.S. are removed without having their property returned to them by Border Patrol. The rate increases to more than 50 percent under Operation Streamline, a program in certain southwest border districts that requires federal criminal prosecution and imprisonment of illegal border crossers, who often spend time in jail before their deportation.

The consequences of the loss and sometimes theft documented in the current report can be devastating – individuals can be deported to unfamiliar border towns without money, identification, or other belongings. They become extremely vulnerable to violence and exploitation at the hands of corrupt officials, human traffickers, and drug cartels.

Julio, a DEA informant who sought asylum in the U.S. with his family after members of a drug cartel in Nogales tried to kill him, is one example. His wife and children were released into the U.S., but he was detained and told that if he pursued asylum he would remain in detention, separated from his wife and children for years while his case was pending. Desperate to be with his family, Julio agreed to voluntary departure, asking only that he not be deported to Nogales, where the cartel had tried to kill him. His request was ignored, and he found himself in Nogales, fearing for his life. The money his family sent while he was detained had been converted to a debit card that did not work in Mexico, so Julio had no means to flee Nogales. His money was never recovered.

The practices also raise serious legal concerns from an international human rights perspective and under U.S. law. What procedures the Border Patrol does have in place are inconsistently followed and are fundamentally inadequate. Individuals detained and deported without their belongings generally do not have adequate notice or any meaningful opportunity to prevent the permanent confiscation of their belongings, as required by law.

The report's findings are also consistent with numerous instances of Border Patrol violating the due process rights of those in its custody, as reports and recent civil lawsuits by the ACLU have shown.

For example, the ACLU just released its own report revealing that 83 percent of individuals deported never see a judge or receive a hearing, including many asylum seekers who are deported directly into harm's way. Multiple lawsuits have also been filed by the ACLU to protect women and children's due process rights and access to attorneys. Recently a lawsuit was settled over the Border Patrol's widespread practice of coercing individuals into signing voluntary removal orders when they might have had access to immigration relief. And finally, the ACLU is now representing thousands of immigrants who languish in prison because they are not given timely interviews about their stated fear of deportation to their home countries.

Now add to this list the latest findings from No More Deaths – Border Patrol's systematic deprivation of personal property from vulnerable migrants – and the picture that consistently emerges is of an agency operating as if it were above the law. Clearly, these findings reflect much broader problems, including the Obama administration's continuing failure to respect due process rights and investigate the Border Patrol's notorious culture of abuse and impunity.

To see the report by No More Deaths, click here.

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What Did the CIA’s Torture Program Have to Do With Intelligence Gathering? Not Much.

December 12th, 2014 No Comments   Posted in ACLU Nationwide
By Marcellene Hearn, Senior Staff Attorney, ACLU National Security Project

One of the most important takeaways from the Senate Intelligence Committee’s torture report summary is that senior CIA personnel – which the report refers to as CIA headquarters – knew from the very beginning that torture was unlawful and learned quickly that their brutal program was pointless.

Yet they told the interrogators to keep torturing.

Unlawful and Futile

Before the CIA had a single prisoner in its custody, its lawyers began researching potential legal defenses to torture in November 2001. And in July 2002 its lawyers drafted a letter to the Justice Department seeking advance immunity from prosecution under the U.S. law that bans torture.  The letter was never sent, but as John Sifton of Human Rights Watch has noted, it’s clear evidence that the CIA knew what it wanted to do was unlawful, and did it anyway.

Abu Zubaydah was the first victim of the CIA’s torture techniques.

Just days after his torture regimen began, in August 2002, CIA personnel sent cables back to CIA Headquarters, in which they repeatedly said they thought it “highly unlikely” that Abu Zubaydah had the information headquarters sought. And yet superiors at Langley told them to keep going.

CIA interrogators reported waterboarding sessions that left Abu Zubaydah “completely unresponsive, with bubbles rising through his open, full mouth.” A CIA email dated August 11, 2002, said that even watching videos of the torture produced in the viewer “strong feelings of futility (and legality) [sic] of escalating or even maintaining the pressure.”

But still, headquarters instructed the interrogators to keep going. Abu Zubaydah would be subjected to the torture techniques for 20 days straight. He spent the equivalent of more than 11 days in a coffin-shaped box and was waterboarded 93 times. According to the Senate report, Zubaydah did not supply the information Langley said it wanted from the torture.

Yet the program was declared a success and expanded.


By early 2003, the CIA was making plans that called for detainees to be tortured basically upon arrival at a given CIA detention site.

For example, when the CIA decided to render Ramzi Bin al Shibh to its prison in Poland in February 2003, interrogators prepared for his arrival by drafting an interrogation plan that called for him to be shaved, stripped, and shackled “hand and foot with arms outstretched over his head” in a cold room – all before interrogators even met him and determined whether he was “cooperative,” to use the report’s term.

Bin al Shibh was then subjected to torture techniques for an estimated 34 days straight.  When the interrogators cabled CIA headquarters that they did not believe Bin al Shibh had the information it sought, superiors told them to keep going, and so they did, for another three weeks.

The Bin al Shibh torture plan became the “template.” Six more detainees would be subjected to similar treatment before meeting with interrogators under similar “plans” approved by Langley. These plans typically didn’t specify what information the CIA thought the victim had. In short, despite the CIA’s assertion that its methods were necessary because its prisoners were withholding information – which wouldn’t justify its crimes anyway – actual withholding was clearly not a prerequisite for torture.

Keep Going, No Matter What

The report also reveals that over and over, with victim after victim, CIA headquarters told interrogators to keep going even when the interrogators assessed that the prisoner did not have the information the CIA sought, was “cooperating,” or might be permanently psychologically damaged.

This happened repeatedly with Abd al Rahim al-Nashiri, who was rendered by the CIA in November 2002 to the “Salt Pit” prison in Afghanistan, then to Thailand (where he was waterboarded three times), and then on to Poland in December 2002.

After al-Nashiri arrived in Poland, interrogators cabled headquarters that al-Nashiri was not “withholding important threat information” and that if the CIA’s methods were resumed he might “suffer the sort of permanent mental harm prohibited by the statute.”  Langley responded by sending an untrained interrogator to Poland who shackled Nashiri with “his hands affixed over his head” for two-and-half days, and threatened him by holding a gun near his head as well as by operating a power drill next to his body while he was blindfolded.

Then, in January 2003, one of the CIA’s two torture-touting contract psychologists was sent out to Poland. “Dunbar,” code for Bruce Jessen, recommended another course of  torture techniques – which headquarters approved – even after the chief interrogator warned that “continued enhanced methods may push [al-Nashiri] over the edge psychologically.”

Al-Nashiri would be held in Poland until June 2003 before being transferred to five more CIA prisons. On July 24, 2014, the European Court of Human Rights found that Poland was complicit in the CIA’s torture of al-Nashiri.

Just Plain Sadism

The report also details torture and secret detention seemingly unconnected to any intelligence purpose at all. The situation at the Salt Pit is emblematic, the prison where Gul Rahman was tortured to death in November 2002.

Prisoners at the Salt Pit were kept in the dark for 24 hours a day, in cells without heat in winter, with buckets for toilets. Senate staff found a photo of a “well-worn waterboard” at the Salt Pit, although the CIA has not admitted to waterboarding anyone there. The CIA could not explain the presence of the waterboard to Senate staff.

More than a year after Rahman’s death, CIA officials on the ground and back at headquarters knew shockingly little about who the CIA held in Afghanistan and why. In December 2003, an official would cable CIA Headquarters:

[W]e have made the unsettling discovery that we are holding a number of detainees about whom we know very little. The majority of [CIA] detainees in [Country _] have not been debriefed for months and, in some cases, for over a year . . . . In a few cases, there does not appear to be enough evidence to continue incarceration, and, if this is in fact the case, the detainees should be released.

To this day, the CIA can’t account for everyone held at the Salt Pit. Their stories remain unknown.

We don’t know who at CIA headquarters approved the torture plans and told the interrogators to keep torturing, because their names are redacted in the report. A special prosecutor, however, should be able to figure it out.

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CIA Agents Said "No" to Torture

December 12th, 2014 No Comments   Posted in ACLU Nationwide
By Jameel Jaffer, ACLU Deputy Legal Director and Director of ACLU Center for Democracy

The Senate report released earlier this week is mainly about the CIA personnel who authorized and used torture.

But the report also includes references to CIA personnel who raised concerns about the torture policies. CIA personnel raised concerns with the agency’s inspector general. They raised concerns with CIA headquarters. Some refused to participate in abusive interrogations.

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The CIA personnel who objected to the torture policies deserve our respect and gratitude. More than three years ago, Larry Siems and I wrote about Joe Darby, the soldier who exposed the abuses at Abu Ghraib. We wrote:

[Darby] was not alone. Throughout the military, and throughout the government, brave men and women reported abuse, challenged interrogation directives that permitted abuse, and refused to participate in an interrogation and detention program that they believed to be unwise, unlawful and immoral. The Bush administration’s most senior officials expressly approved the torture of prisoners, but there was dissent in every agency, and at every level.

But until now, our government and our official history have honored only those who approved torture, not those who rejected it.  

Take Action: Call on President Obama to Honor Those Who Said No to Torture

In December 2004, as the leadership of the CIA was debating whether to destroy videotapes of prisoners being waterboarded in the agency’s secret prisons, President Bush bestowed the nation’s highest civilian honor, the Presidential Medal of Freedom, on George J. Tenet, the former C.I.A. director who had signed off on the torture sessions. In 2006, the Army major general who oversaw the torture of prisoners at Guantánamo was given the Distinguished Service Medal. One of the lawyers responsible for the Bush administration’s “torture memos” received awards from the Justice Department, the Defense Department, and the National Security Agency.

The video above highlights some of the soldiers and public servants who tried to expose and end the abuse of prisoners in American detention centers. We should formally recognize and honor these people. As Siems and I wrote, honoring the people who stayed true to our values is “a way of encouraging the best in our public servants, now and in the future.” It is also a way of honoring the best in ourselves.

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