Lies and the Lying Liars Who Tell Them: CIA Edition

December 11th, 2014 No Comments   Posted in ACLU Nationwide
By Ashley Gorski, Nadine Strossen Fellow, National Security Project, ACLU

The executive summary of the Senate torture report documents an overwhelming array of CIA deceptions, ranging from misrepresentations about the "effectiveness" of torture to misstatements about the number of detainees in CIA custody.

The breadth of the agency's deceit – to the White House, the Department of Justice, Congress, and the public – is stunning.

CIA Lies to Everyone about the "Effectiveness" of Torture

Torture is morally abhorrent, forbidden by law, and incompatible with our nation's values. Its "effectiveness" should be irrelevant. Still, the purported effectiveness of torture is a centerpiece of the Senate report, because the CIA's claims about it were so important to the authorizations and legal approvals of the torture program – and because its lies and omissions were so outrageous.

From 2003 through 2009, when seeking to justify its so-called "enhanced interrogation techniques," the CIA repeatedly asserted that torture was necessary because it allowed the agency to disrupt terrorist plots and capture additional terrorists, thereby saving lives.

The Senate report definitively puts this myth to rest. After reviewing more than six million pages of CIA records, the Senate found that 20 of the CIA's most cited torture "success stories" were "wrong in fundamental respects," and that torture did not produce unique, otherwise unavailable intelligence. The CIA's lies and misstatements took several forms. In some cases, the CIA already possessed information it claimed coercion produced. In others, detainees provided information without being tortured, or it turned out a "plot" wasn't a real threat in the first place.

In other words, even by the CIA's twisted effectiveness metric, the agency's extreme and brutal techniques were actually counterproductive. According to the report, many detainees provided significant, accurate information without being subjected to torture. And on more than one occasion, detainees fabricated information in order to placate their torturers.

CIA Lies to the Department of Justice About the Underlying Facts

The CIA lied repeatedly to the Department of Justice in order to obtain the agency's approval of its torture program. From 2002 through 2007, the Office of Legal Counsel (OLC) within DOJ issued several opinions that provided legal justifications for torture – opinions that relied in significant part on the CIA's misrepresentations concerning the conditions of confinement for detainees, the application of coercive techniques, and the effectiveness of those techniques.

For example, the CIA misled the OLC about Abu Zubaydah, the agency's first detainee, claiming that Zubaydah was the "third or fourth man" in Al Qaeda; that he had been "involved in every major terrorist operation carried out by Al Qaeda;" that he was "well-versed" in resistance to interrogation techniques; and that his interrogation team was "certain" that he was withholding "critical threat information." These claims were simply not supported by CIA records.

The CIA also dissembled about torture techniques. Among other examples, the agency stated that it would stop subjecting a detainee to standing sleep deprivation if it led to edema; that medical personnel would intervene when standing sleep deprivation resulted in hallucinations; that the CIA's "water dousing" technique did not involve cold-water immersion; and that the CIA diapered detainees "for sanitation and hygiene purposes" – and not "[t]o cause humiliation" or "induce a sense of helplessness." Yet the agency's own records contradict these assertions – the abuses continued regardless of harm or limitations.

And although the CIA told OLC that detainees wouldn't be shackled with their hands above their heads for more than two hours, the CIA placed detainees in this position for extended periods of time. One detainee, Ridha al-Najjar, was handcuffed to an overhead horizontal bar for 44 hours in the span of two days.

OLC similarly relied on the CIA's claims that detainees did not experience physical pain during waterboarding, and that any physical sensations (such as choking) "end when the application ends." OLC shouldn't have relied on these claims, which are implausible on their face. Now we know the CIA's own records showed that the waterboarding of Khalid Sheikh Mohammad amounted to a "series of near drownings," and that Abu Zubaydah's waterboarding sessions resulted in "immediate fluid intake and involuntary leg, chest, and arm spasms" and "hysterical pleas." During one waterboarding session, Zubaydah became "completely unresponsive, with bubbles rising through his open, full mouth." After medical intervention, he regained consciousness and expelled "copious amounts of liquid." Most would consider that to be ample evidence of pain and "physical sensation."

The CIA's lies went beyond the torture techniques themselves; they extended even to the training and backgrounds of its interrogators. The CIA told the OLC that its interrogators were trained for approximately four weeks, and that all personnel involved directly in interrogations were appropriately screened. But in fact, the CIA officers and interrogators who conducted interrogations in 2002 did not undergo any training, and numerous CIA officers involved with the program had "engaged in inappropriate detainee interrogations, had workplace anger management issues, and had reportedly admitted to sexual assault."

CIA Lies to the Media About the Torture Program

The Senate report also describes how, in an attempt to shape press coverage, CIA officers and the CIA's Office of Public Affairs (OPA) provided classified information to journalists, often repeating the same inaccurate statements that the agency had made to policymakers. For example, in March 2005, based in part on information provided by the CIA's OPA, the New York Times quoted an unnamed senior U.S. official as claiming that "intelligence obtained by those rendered, detained and interrogated ha[d] disrupted terrorist operations" and saved lives in the United States and abroad.

* * *

As these and other stories show, the CIA had an institutional interest in maintaining its ability to torture detainees ­– and the agency was willing to bend the truth to preserve its goals.

In late 2005, for example, while the Senate was debating the Detainee Treatment Act, the CIA drafted a briefing for President Bush concerning one of the detainees it had tortured, Abu Ja'far al-Iraqi. The CIA's first draft stated that al-Iraqi provided "almost no information that could be used to locate former colleagues or disrupt attack plots." After reviewing the draft, one of the CIA interrogators wrote an email arguing that the language needed to change, because it implied that interrogations weren't working. Relying on a chillingly banal metaphor, he observed, "The glass is half full, not half empty, and is getting more full every day." Ultimately, the statement that al-Iraqi had provided "almost no information" was deleted from the briefing.

These examples barely scratch the surface of the CIA's troubled relationship with the truth. It's time for the agency to be held to account for its deceit.

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Profiling Won’t Save Us

December 11th, 2014 No Comments   Posted in ACLU Nationwide
By Laura W. Murphy, Director, ACLU Washington Legislative Office

This piece originally appeared on The Hill's Congress Blog.

The Obama administration this week announced new guidance on how federal law enforcement agents may use race and other characteristics, such as religion and national origin, in their work. This was a historic opportunity, at a critical moment, for the president to take a dramatic step forward on civil rights by completely banning racial, religious and other forms of profiling by law enforcement at all levels. Instead, the new guidance offers only modest improvements.

Our Constitution guarantees the law's protection in equal measure to everyone. Yet for too many people this promise is still a fantasy. True, the new rules will prohibit profiling based on national origin, religion, gender, sexual orientation, and gender identity, in addition to race and ethnicity. That's a signal of progress and should be celebrated. However, the new rules remain riddled with exceptions and loopholes that leave many vulnerable to continued biased profiling. As a Latino at a border checkpoint or a Muslim trying to catch a flight, you will be no more protected from the continued insult of unjustified questioning and searches or the routine violation of your constitutional rights today than you were yesterday.

It is deeply unfortunate that the president stopped short of a full ban. The costs of such a move are high and without any real benefits. For, although we live in a world in which law enforcement agencies constantly identify security concerns, we must not forget the lesson that recent history teaches us all too clearly: racial profiling won't save us.

In fact, instead of helping, racial profiling hurts. It harms the relationships between law enforcement and the communities they are sworn to protect, sowing suspicion where trust is urgently needed. And the impacts on targeted communities can be catastrophic.

Take the war on drugs. ACLU ran the numbers on marijuana arrests between 2001 and 2010. We found that, despite roughly equal usage rates, blacks were almost four times more likely than whites to be arrested for marijuana. People of color were disproportionately arrested and imprisoned, and those arrests doubtless shaped their lives long after, making it harder to find work, to vote, to participate fully in society.

Yet we never did win the war on drugs. We haven't even come close. Racial profiling failed, but we kept right on doing it, heedless of the very real costs. Perhaps because those costs were largely borne by people of color and by disempowered communities, they were easier to ignore. But spoken or unspoken, the effects remained.

It's an ugly thing, knowing your country finds you suspicious not because of what you've done but because of crude stereotypes about who you are. As Obama himself noted, "there are very few African-American men in this country who haven't had the experience of being followed when they were shopping in a department store. That includes me."

We have long known that racial profiling is ineffective. That's why Attorney General John Ashcroft banned it back in 2003, albeit with enormous carve outs. He said that, "using race… as a proxy for potential criminal behavior is unconstitutional, and it undermines law enforcement by undermining the confidence that people can have in law enforcement." This left the government, then and now, in the contradictory position of asserting that racial profiling is abhorrent and unacceptable — except in special cases, where it is suddenly fine.

Racial profiling is wrong. It's wrong whether it's based on race or on other characteristics like sexual orientation, religion or national origin. Racial profiling didn't help us win the war on drugs, and other forms of profiling won't help us address national security concerns.

A national security loophole in the 2003 Ashcroft Guidance allowed federal law enforcement officers to discriminate against America's minorities. And discriminate they did. The FBI, for example, has mapped minority communities around the country based on biased stereotypes, as the ACLU has documented. The FBI has also targeted American Muslim communities based not on evidence of wrongdoing, but because of their ethnicity, national origin, and religion. Law abiding citizens are selected for "voluntary" interviews, pressured by the FBI into becoming informants, or placed on Kafka-esque watchlists without meaningful recourse. The FBI has used informants at community centers, mosques, and other public gathering places and against people exercising their First Amendment right to worship or to engage in political advocacy.

The "border integrity" exception has likewise encouraged Customs and Border Protection to profile all along our borders. CBP refuses to release data that would measure profiling, so local residents in Arivaca, Arizona, decided to monitor a checkpoint themselves. After more than 100 hours of observation over two months, they found that a Latino-occupied vehicle is more than 26 times more likely to be required to show identification than a White-occupied vehicle. And Latino-occupied vehicles were nearly 20 times more likely to be ordered to secondary inspection. A local business owner in Olympia, Washington, said he's "never seen anything like" Border Patrol's racial profiling: "Why don't they do it to the white people, to see if they're from Canada or something?"

The Constitution demands that all citizens, regardless of race, religion or national origin, receive the same legal protections. That is a key part of who we are as Americans. That's why the ACLU and other rights-focused organizations objected so strenuously back in 2003 when the government, while declaring boldly that "racial profiling is wrong and will not be tolerated," insisted on national security and border integrity exceptions to the ban. We continue to object to such carveouts in the context of profiling based on religion, national origin, gender and sexual orientation.

There are no loopholes in the Constitution, and there shouldn't be any in the federal government's rules about racial profiling, either. That's what makes the Justice Department's new guidance so badly incomplete. With this announcement, the Obama administration passed up a chance to finally and fully close the oft-abused loopholes by which the abhorrent practice of biased profiling is allowed to continue so long as national security or border integrity can be invoked in some way. That's a real loss, both for civil rights and for public safety.

The truth is, racial profiling isn't an effective tool. It's a bad, lazy, and an offensive habit. It leaves certain communities feeling constantly victimized, demoralized, and alienated. And it won't protect us. We'll be a better and a safer nation once we fully acknowledge that simple fact.

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What’s Next? Prosecuting a Pregnant Woman for Working Full Time?

December 11th, 2014 No Comments   Posted in ACLU Nationwide
By Alexa Kolbi-Molinas, ACLU Reproductive Freedom Project

This summer, Tennessee thumbed its nose at doctors, nearly every national medical association, addiction experts, and women's right activists and passed a law that essentially criminalizes pregnancy. In short, this deeply misguided law risks the health of women and babies by threatening expectant mothers who struggle with addiction or substance abuse with jail time, forcing those women who need health care the most into the shadows.

Already, women are being arrested and separated from their children – instead of getting support – because they suffer from drug addiction.

Now, a federal prosecutor wants in on the action: The U.S. Attorney for the Eastern District of Tennessee William C. Killian issued a statement bragging that Lacey Weld would serve an enhanced (in other words, extended) sentence for her role in an alleged drug conspiracy because she was pregnant at the time, even though she had already fully cooperated with authorities in exchange for a reduced sentence. In other words, the prosecutor singled out Ms. Weld for harsher penalties solely because she was pregnant. Unfortunately, after a hearing riddled with medical and scientific inaccuracies, a judge agreed to the enhancement.

Addiction is not a crime. Neither is being pregnant. That is why we joined a friend-of-the-court brief filed by the National Advocates for Pregnant Women, on behalf of leading constitutional, medical, and public health experts, asking the Sixth Circuit Court of Appeals to reverse the decision to punish Ms. Weld for her pregnancy. We have also asked Attorney General Holder to renounce the federal prosecutor in Tennessee's actions and ensure that no other federal prosecutor takes this position in the future.

Not only is criminalizing pregnancy flatly unconstitutional, it's dangerous for women, families, and babies.

Though the prosecutor might claim that doling out extra punishment to pregnant women protects babies, the evidence is crystal clear that policies like these don't support healthy pregnancies. Leading medical groups like the American Medical Association and the American Academy of Pediatrics have long opposed these types of laws and policies. By threatening pregnant women with prosecution, these policies can drive a woman struggling with addiction away from health care and discourage her from seeking treatment, including prenatal and pregnancy-related care.

Who does that help, other than extreme prosecutors or legislators looking to enhance their reputations?

We all want women and babies to be healthy, and that's why we should follow the lead of medical professionals here, not prosecutors. Pregnancy and addiction should be considered a public health issue, not a criminal one. We cannot allow emotion, stigma, and junk science, like the grossly inaccurate statements made during the course of Ms. Weld's sentencing hearing, to guide policy.

Pregnant women who struggle with addiction or substance abuse don't need harsher sentences. They need better access to health care.

If threatening the health of women and families weren't awful enough, moves like this fling open the door to prosecutions for a never-ending list of behaviors that are common because they "risk the health of the fetus." Do we really want to open the door for extreme politicians to punish pregnant women for an endless list of things – like not exercising enough, working long hours, being exposed to certain chemicals on the job, or being unable to afford regular prenatal care?

Politicians – and prosecutors – simply have no business playing doctor by trying to make pregnancy a crime, just as they have no business interfering with women's other medical decisions. When they do, the results can be disastrous.

Those really concerned with the welfare of women and babies would do well to make sure pregnant women struggling with addiction have better access to health care, not use them as examples to further their own private or political gain.

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"A Train Wreck Waiting to Happen": Shocking Stories from the Senate’s Torture Report

December 10th, 2014 No Comments   Posted in ACLU Nationwide
By Noa Yachot, Communications Strategist, ACLU

In the last 24 hours, pundits have spoken at length about the Senate Intelligence Committee's landmark torture report, the executive summary of which was released yesterday. For good reason. Despite all of the leaks, the previously released documents, and the reports already written, the cruelty and illegality exposed in the 525-page document are astounding. It's hard to believe that an American government agency engaged in such systematic brutality and has faced no meaningful accountability.

This International Human Rights Day – as we consider how we went so dramatically off course, and how we can make amends – let's especially remember the victims and survivors of the U.S. torture program. They haven't found recourse in U.S. courts, and they weren't interviewed for the Senate report. Some remain detained without charge or trial, and many are still coping with the deep psychological scars and physical consequences of torture. But their stories can still be told, and the Senate report goes into laudable detail on what they endured.

Four such stories, based almost exclusively on information taken from the Senate torture report, are shared below. They don't include the detainees forced to stand on broken legs, endure ice water baths, or undergo "rectal rehydration" (in reality, rape) at the hands of interrogators, at least one of whom had anger management issues while another "reportedly admitted to sexual assault." These stories represent just a fraction of the prisoners profiled in the report, including at least 26 individuals wrongfully detained even according to the CIA's unlawful standards.

But together, they represent many of the worst elements of the program – the abuse itself, the breakdown in oversight, the preference for merciless brutality over credible intelligence gathering, and the complicity of the highest levels of government.

The Death of Gul Rahman

The report provides new details about the death of Gul Rahman, at a black site codenamed COBALT in the report, but known to the world as the Salt Pit. The country name is redacted, but we know Rahman died in Afghanistan.

The officer in charge of the Salt Pit at the time of Rahman's death is referred to in the report as "CIA OFFICER 1." He was, the report says, on his first overseas assignment at the time and had no experience handling interrogations. CIA records show that other CIA officers recommended he not have access to classified information due to a "lack of honesty, judgment, and maturity."

Details of Rahman's death are provided, and they are gruesome.

 [CIA OFFICER 1] ordered that Gul Rahman be shackled to the wall of his cell in a position that required the detainee to rest on the bare concrete floor. Rahman was wearing only a sweatshirt, as [CIA OFFICER 1] had ordered that Rahman's clothing be removed when he had been judged to be uncooperative during an earlier interrogation. The next day, the guards found Gul Rahman's dead body. An internal CIA review and autopsy assessed that Rahman likely died from hypothermia—in part from having been forced to sit on the bare concrete floor without pants. [CIA OFFICER I's] initial cable to CIA Headquarters on Rahman's death included a number of misstatements and omissions that were not discovered until internal investigations into Rahman's death.

The officers responsible for Rahman's death were never even reprimanded. In fact, just four months later, CIA OFFICER 1 was recommended by a superior for a $2,500 reward for "consistently superior work." He was formally certified in April 2003 as a CIA interrogator.

In 2005, a CIA "Accountability Board" reviewed the circumstances of Rahman's death, and it recommended a punishment of 10 days suspension without pay for OFFICER 1. In February 2006, however, CIA Executive Director K.B. Foggo told the officer that he would take no disciplinary action against him. In a memo explaining his decision, he wrote:

Cable traffic reviewed by the board shows conclusively that Headquarters generally was aware of, and posed no objections to, the confinement conditions and interrogation techniques being imposed on Rahman…

Former Assistant U.S. Attorney John Durham, who in 2008 led a Department of Justice investigation into some aspects of the torture program, recommended a full criminal investigation be opened into Rahman's death. Attorney General Eric Holder eventually closed the case. There was no indictment.

The Wrongful Detention of Khalid El-Masri

Khaled El-Masri is a German citizen who was wrongfully detained in Macedonia and turned over to the CIA, who rendered him to Afghanistan in 2004. (The country is redacted in the Senate report.)

Some CIA officials expressed doubts early on as to whether they had arrested the right person. The National Security Council ultimately ordered him repatriated to Germany. He would eventually be deposited at night, without explanation, on a hill top in Albania.

In March 2006, the CIA admitted to five members of the Senate Intelligence Committee that the agency had detained and subsequently released Khaled. In 2007, the CIA's internal watchdog concluded that the detention was wrong. In the words of the inspector general, "[a]vailable intelligence information did not provide a sufficient basis to render and detain Khalid al-Masri" and the "Agency's prolonged detention of al-Masri was unjustified." In its formal response to the Senate's report, the CIA finally fesses up to its mistakes over what it describes as "the improper capture and rendition of Khalid al-Masri." The CIA's response goes further, noting that there was no lawful basis for Khaled's capture, rendition, or detention – and that the agency "plainly took too long to remediate its mistake."

Despite these admitted mistakes, back in 2007, the CIA director decided that no measures would be taken against those responsible for Khaled's abduction and torture, because "[t]he Director strongly believes that mistakes should be expected in a business filled with uncertainty and that, when they result from performance that meets reasonable standards, CIA leadership must stand behind the officers who make them."

The ACLU sued the CIA over El-Masri's unlawful detention. The suit made its way through the court system, and though his story was widely known throughout the world, the Supreme Court accepted the government's arguments that hearing the case would harm state secrets. It dismissed the suit in October 2007, the same month the CIA told the Senate Intelligence Committee that it had lacked the evidence to detain and render El-Masri.

The Torture of al-Nashiri: A "Train Wreck Waiting to Happen"

Abd al-Rahim al-Nashiri is a former CIA detainee presently held at Guantánamo Bay, where he faces the death penalty for his alleged role in the bombing of the U.S.S. Cole. He was tortured by the CIA over at least four separate periods, despite being assessed as "compliant and cooperative" at the end of each one.

But the intelligence he provided wasn't good enough for some, and officers at CIA headquarters ordered he continue to be tortured. When some interrogators determined in December 2002 that he wasn't withholding important information, officers at CIA headquarters responded:

When we are able to capture other terrorists based on his leads and to thwart future plots based on his reporting, we will have much more confidence that he is, indeed, genuinely cooperative on some level.

The torture of al-Nashiri resumed after a short pause in December 2002 by an officer the report refers to as CIA OFFICER 2. This officer hadn't been trained, certified, or approved to use the CIA's unlawful techniques, and his deployment was met with some objections because some colleagues had reported he was "too confident, had a temper, and had some security issues." It was later suggested that he was sent to interrogate Al-Nashiri because "Agency management" felt that other interrogators had been "too lenient" with Al-Nashiri and thus "[CIA OFFICER 2]] was sent to [DETENTION SITE BLUE] to 'fix' the situation."

The torture of al-Nashiri continued:

For example, [CIA OFFICER 2] placed al-Nashiri in a "standing stress position" with "his hands affixed over his head" for approximately two and a half days. Later, during the course of al-Nashiri's debriefings, while he was blindfolded, [CIA OFFICER 2] placed a pistol near al-Nashiri's head and operated a cordless drill near al-Nashiri's body. Al-Nashiri did not provide any additional threat information during, or after, these interrogations.

Allegations of unauthorized torture techniques used on al-Nashiri were described in a 2003 CIA Office of Inspector General report, including:

slapping al-Nashiri multiple times on the back of the head during interrogations; implying that his mother would be brought before him and sexually abused; blowing cigar smoke in al-Nashiri's face; giving al-Nashiri a forced bath using a stiff brush; and using improvised stress positions that caused cuts and bruises resulting in the intervention of a medical officer, who was concerned that al-Nashiri's shoulders would be dislocated using the stress positions.

The report also notes that al-Nashiri was force-fed rectally while on a hunger strike.

In January 2003, after receiving the interrogation plan for al-Nashiri, the CIA chief of interrogations sent an email to colleagues expressing reservations with the program and informing them he would be retiring shortly. Among other things, he wrote, "[t]his is a train wreck [sic] waiting to happen and I intend to get the hell off the train before it happens." He also expressed concern about al-Nashiri's psychological state and the use of psychologists as interrogators. Those two psychologists, James Mitchell and Bruce Jessen (referenced in the report as DUNBAR and SWIGERT), oversaw some of the worst interrogations and were ultimately paid over $80 million by the CIA to take over the program.

Psychologists continued to express concern about al-Nashiri's mental state over the years – including, most recently, a torture expert during a pre-trial military commissions hearing at Guantánamo.

Muhammad Rahim: Torture Not Prohibited

Alleged al Qaeda facilitator Muhammad Rahim was captured in Pakistan in 2007. Believing him to have information on Osama bin Laden, then-CIA Director Michael Hayden asked the president to issue an executive order determining that the Geneva Conventions did not prohibit the use of the CIA's torture techniques on Rahim.

An Office of Legal Counsel memo, along with an accompanied executive order, was issued on July 20, 2007, determining that a combination of six techniques ("sleep deprivation, dietary manipulation, facial grasp, facial slap, abdominal slap, and the attention grab") could be lawfully used on Rahim.

From the report:

During the interrogation of Rahim using the CIA's enhanced interrogation techniques, Rahim was subjected to eight extensive sleep deprivation sessions, as well as to the attention grasp, facial holds, abdominal slaps, and the facial slap. During sleep deprivation sessions, Rahim was usually shackled in a standing position, wearing a diaper and a pair of shorts. Rahim's diet was almost entirely limited to water and liquid Ensure meals. CIA interrogators would provide Rahim with a cloth to further cover himself as an incentive to cooperate. For example, a July 27, 2007, cable from the CIA detention site states that when Rahim showed a willingness to engage in questioning about "historical information," he was "provided a large towel to cover his torso" as a "subtle reward." CIA interrogators asked Rahim a variety of questions during these interrogations, seeking information about the current location of senior al-Qa'ida leaders, which he did not provide.

After a six-week pause, the torture resumed, with a sleep deprivation session that lasted a total of 138.5 hours, from November 2 until November 8, 2007.

In the words of the Senate report, "The CIA's detention and interrogation of Mohammad Rahim resulted in no disseminated intelligence reports." He is currently detained at Guantánamo Bay.

***

There you have it. Alarm bells ignored; an utter lack of accountability; abduction, secret detention, and torture, including of innocents; brutality to the point of death. Impunity for these crimes has caused terrible damage to the American justice system and to the principle that no one is beyond the law. The statute of limitations hasn't run out on many of the worst offenses. A special prosecutor should be appointed, and fast.

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FYI Abercrombie: Discrimination Is So Out of Style

December 10th, 2014 No Comments   Posted in ACLU Nationwide
By Aleksandr Sverdlik, Program on Freedom of Religion and Belief

The Supreme Court will soon hear the case of Samantha Elauf, a Muslim teenager who was denied a job at an Abercrombie store solely because her religious headscarf, or hijab, didn't meet the company's "look policy." Abercrombie doesn't contest this fact. Instead, the retailer simply argues that it's off the hook because Elauf never explicitly asked the company not to discriminate against her.

If this sounds absurd, it's because it is.

Although not aware of the official look policy, Elauf had been advised by a friend who worked for Abercrombie that wearing a hijab shouldn't be a problem, especially if it wasn't black, a color the chain prohibits. At her interview, Elauf scored highly on all three interview criteria – including, ironically, being "outgoing and promot[ing] diversity"— and received a final score that indicated she should be hired. Although Elauf was wearing her headscarf, the interviewer didn't mention any potential issues, despite discussing other requirements, such as a ban on excessive makeup and nail polish.

The interviewer concluded that Elauf wore a hijab for religious reasons and was fully qualified for the job; a supervisor didn't see it the same way, however. A headscarf would violate the look policy, he said, and Elauf therefore shouldn't be hired.

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on religion. How then has Abercrombie gotten away with it thus far? According to the company, even though the interviewer assumed that Elauf wore a hijab for religious reasons, without Elauf stating it explicitly, managers couldn't know for sure. Put another way, Elauf should somehow have assumed that Abercrombie would discriminate against her and politely ask that they not.

Today, the ACLU and the ACLU of Oklahoma, together with a broad coalition of religious groups, filed a friend-of-the-court brief in support of Elauf and the U.S. Equal Employment Opportunity Commission.

Open your eyes, Abercrombie. Discrimination is not in style.

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Academic Freedom and the Right to Remain Anonymous Online

December 10th, 2014 No Comments   Posted in ACLU Nationwide, Free Future
By Anonymous

We are the founders of PubPeer.com, an online forum for scientific discussion of research scholarship. We and many of the users of our website are anonymous. That anonymity is important for free speech, for academic freedom, and for scientific inquiry. But it’s being threatened, which is why we’re going to court to defend the First Amendment right to anonymity.

Have you ever questioned the claims that scientists make? For example, last year’s discovery of the so-called “God particle,” or the back-and-forth over whether caffeine is good or bad for you? Even if you haven’t, other scientists have. Analysis and criticism of the work of others is an integral part of research. The “papers” that scientists publish all undergo formal “peer review” before they are published, with the aim of ensuring high standards.

The problem is that today’s peer review is a broken process. Too often, errors slip through, and they can go uncorrected for years. Even if they are eventually exposed, that’s often long after other researchers or clinical trials have relied upon them.

This not only wastes taxpayers’ money (consider the fact that the National Institute of Health gave out $30 billion in research funding last year), but it rots the very foundation of scientific research, which builds on existing work. If today’s basic cancer research turns out to be mistaken, what does that mean for those enrolled in tomorrow’s clinical trial? This is not a hypothetical problem.

A Job for PubPeer’s Anonymous Users

This is where PubPeer fits in. We created PubPeer in our spare time two years ago to improve peer review by using the power of the internet to accelerate the exchange of ideas and scientific progress. Now, thanks to PubPeer, scientists can instantly comment directly on the work of their peers. The results have been dramatic. Already, PubPeer commenters have been in the thick of some of the biggest scientific stories, notably in analyzing a controversial paper about stem cells, which was eventually withdrawn by its authors.

PubPeer works because we allow anonymous comments. Without that anonymity, most scientists would fear professional retribution if they criticized their peers’—or perhaps their future employers’—work. But with that anonymity, our users have generated a steady stream of comments highlighting problems in basic scientific research on any number of topics: cancer, stem cells, diabetes, and more.

Registered users must be authors on a scientific publication. We screen unregistered comments to keep things factual, scientific, and civil. Comments must be based on publicly verifiable information, which ensures that what matters is the substance of our users’ comments, and not their identities. We don’t force our users to identify themselves, and that turns out to be the secret ingredient that allows our site to make a unique contribution to peer review.

The Threat to PubPeer (and Science)

Unfortunately, the anonymity that makes PubPeer work is under threat. A prominent cancer scientist, unhappy with the attention his research papers have received on PubPeer, is suing some of our anonymous commenters for defamation. And he is trying to use a subpoena to force PubPeer to turn over whatever identifying information we have for them.

With the American Civil Liberties Union and our longtime attorney Nick Jollymore, we are fighting this attempt to chill scientific discussion, because we believe those comments are scientifically valid opinions that raise questions of real public interest. If you want to make up your own mind, you can read the legal brief we filed challenging the subpoena, along with an expert opinion from Dr. John Krueger, a scientist who spent twenty years in the federal government investigating claims of research improprieties.

We believe that scientific questions should be resolved through scientific discussion, not through court proceedings. Imagine if a lawsuit were filed every time one economist criticized the work of another economist! The threat of liability would stifle legitimate academic discourse. For that very reason, we have always encouraged researchers to respond to our commenters with logic and data, not defamation suits.

Fighting for the Right to Remain Anonymous

Fortunately, the First Amendment is on our side. It protects the right to anonymous speech. The right isn’t absolute, but it protects those who choose to remain anonymous when engaging in lawful speech. Some of our nation’s founders—James Madison and Alexander Hamilton—wrote their most influential papers behind the shield of anonymity. Why? So they wouldn’t face political persecution at the hands of the British, and so their ideas could be evaluated on their merit rather than on the identity of the speaker. The same principle is at work in our case. It’s about academic freedom.

PubPeer is maintained by research scientists with the help of a computer scientist who all share a strong belief that raising scientific standards requires robust post-publication review protected by the right to anonymity.

This op-ed was originally posted on Wired.


A Look at the Privacy Policies For the FAA’s Six Drone Test Sites

December 10th, 2014 No Comments   Posted in ACLU Nationwide, Free Future
By Nathaniel J. Turner, ACLU Washington Legislative Office

Last month, an Australian woman sunbathing topless in her back yard was accidentally captured in a photograph by a drone snapping pictures for a real estate listing. The picture was placed in online ads and billboards before the mistake was caught. With the U.S. working on regulations for commercial drones, you might think that cases like this would be part of the conversation. But so far, both Congress and the FAA have passed the buck on creating privacy protections for domestic drones. Some of the little work that has been done on privacy protections has fallen to the FAA’s six drone test sites across the country.

These test sites were authorized by the FAA in in December 2013 to research “certification and operational” requirements for bringing drones to American skies. The sites, in Alaska, Nevada, New York, North Dakota, Texas and Virginia, will test government and private uses for drones, from tracking caribou movements to monitoring beaches for law enforcement. And each must also create a privacy policy to address concerns about the data being collected at each site and how it is used.

The creation of the sites was ordered by Congress in the 2012 FAA Modernization and Reform Act (FMRA). Despite rising concern over the privacy implications of drones, the FMRA made no attempt to direct privacy protections. The FAA also balked at developing federal privacy standards. Contrary to the urgings of the ACLU and others, the FAA provided no baseline privacy standards for the sites. Aside from some very general guidelines, all specifics about data collection, use, or retention were left to each test site to decide.

With such wide latitude from the FAA, the privacy policies are as diverse as the states themselves— ranging from the comprehensive to the perfunctory.

The test sites in both Nevada and Virginia have policies that clearly address a number of privacy concerns involving drones. Nevada’s site, for example, will choose drone flight paths based on the type of data they will collect to minimize the potential for invasion of privacy. The policy also requires drone operators to log any potential privacy impacts that occur during flights. The policy at the Virginia site, while not as comprehensive, limits the storage of data to 14 days and requires notification of the public before a test flight begins.

The worst policies are those in Texas and New York. The Texas policy makes individual privacy violations almost impossible to remedy, and places the burden on the victim to show “demonstrable proof” that an image violating his or her privacy exists in order to compel the test site to destroy the image.

New York’s policy is even vaguer than Texas’s and offers only general assurances of privacy protection. It states that no data on individuals will be “intentionally” collected, but gives no specifics on how to mitigate unintentional collection. It goes on to say that unintentionally collected data will be destroyed, yet it offers no limits on how long data will be stored or how it will be determined if data collected violates a person’s privacy.

Somewhere in the middle are the policies in Alaska and North Dakota. The Alaska site’s policy has some good elements—it is the only policy to explicitly state that data collected during tests will not be turned over to law enforcement absent a court order. However, it lacks a data retention policy (it promises that the policy will be published separately). North Dakota is an unusual case in that it appears not to have any published policy, instead using a committee convened by the University of North Dakota to deal with privacy issues. The lack of details makes drawing any conclusions about the protection of privacy in that state impossible.

The purpose of these test sites is to chart the future course of drone use—including the privacy implications. But with each site taking a wildly different approach to privacy with little FAA oversight, whether or not this future will include protections for the fundamental rights of Americans remains to be seen.


As If! Women Aren’t Clueless, Even If Politicians Continue to Act That Way

December 10th, 2014 No Comments   Posted in ACLU Nationwide
By Talcott Camp, ACLU Reproductive Freedom Project

Late last week, the Arkansas Medical Board initially voted 7-6 not to intrude into the relationship between women and their doctors. They declined to require medical providers to perform an ultrasound exam for a woman seeking abortion care, and then – regardless of the patient's wishes – to inform her if the exam detected a fetal heart tone.

Unfortunately, and under protest, one board member changed his vote because he felt that a 2013 Arkansas law required such regulations, and the new rules passed.

This requirement stands even if the pregnancy seriously endangers the woman's health; even if the fetus has a condition that means it will not survive; and even if the woman does not desire to have the test or to hear the required information. As one board member put it, the intrusion is "paternalistic" and "condescending." It treats women as if they're clueless about their own decision making.

Sadly, this is no anomaly.

Already, a handful of states have started requiring medical providers to perform ultrasounds and then to take actions such as swinging the ultrasound screen around to point it at the woman and describing what is on the screen – again, whether she wants to receive the information or not. Those states permit the woman to shut her eyes and cover her ears – the indignity of which does not trouble those who support such requirements. Legislators in many states have introduced similar bills in the last few years, and there will likely be more in 2015.

The Arkansas Board's decision is thus part of a trend across the country in which politicians presume to insert their interpretation of morality into the process through which a woman makes this profoundly private medical decision with her family, her doctor, and whatever pastor or faith leader she may include. A board member in favor of the intrusion in Arkansas captured the trend perfectly in explaining his view that it "simply shows these women that are pregnant that there is life on board" – as if a woman needed this political appointee's guidance.

As if...a woman had the mental capacity of a container ship, in need of schooling about what's "on board" when she gets pregnant.

As if...women and families don't know better than any politician what they can and cannot handle as they struggle to raise the children they already have.

As if...politicians ever dare to suggest that men require moral instruction before they can make deeply important decisions.

It is time we pricked up our ears and heard the true rationale behind the rash of laws restricting women's decisions and imposing extra burdens on their medical providers. It is not to protect women's health. It is to denigrate and ultimately to usurp their role as the people who make important, private medical decisions for themselves and their families.

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New DOJ Profiling Guidance: LGBTQ-Inclusive, But Inadequate

December 10th, 2014 No Comments   Posted in ACLU Nationwide, Washington Markup
By Ian S. Thompson, ACLU Washington Legislative Office

This piece originally appeared at Slate's Outward blog.

"Hands up, don't shoot!" "We can't breathe!"

With the backdrop of a national, youth-led movement demanding reform of a system of policing that too often approaches communities of color like an occupying force, the Department of Justice on Monday released updated profiling guidance for federal law enforcement agencies. The guidance is explicitly inclusive of both sexual orientation and gender identity – an aspect that is of critical importance given the far too frequent experiences of LGBTQ people, particularly LGBTQ people of color, with profiling and targeting by law enforcement. Unfortunately, the guidance as a whole – while taking some praiseworthy steps forward – is not an adequate response to the crisis of racial profiling in America.

From the police raids and harassment that sparked the modern LGBTQ rights movement at the Stonewall Inn to modern day unlawful sting operations targeting gay and bisexual men and transgender women as sex workers, the harms of ineffective, un-American profiling are of clear concern and importance to the LGBTQ community.

The experience of Monica Jones, a student at Arizona State University and a transgender woman of color, is but one telling example of how profiling of LGBTQ people occurs. In May of 2013, Monica was arrested for the "crime" of walking while trans. Under a Phoenix ordinance that flies in the face of the Constitution, an individual can "manifest" their intention to commit an act of prostitution by, for example, waving at cars, talking to passersby, or asking if someone is a police officer. In Monica's case, she was assumed to be engaging in sex work because of how she looked.

During a bench trial in April, the arresting officer stated that her presence near her home, in an area he claimed is "known for prostitution," and her outfit, which he described as a "black, tight-fitting dress," suggested to him that she was manifesting intent to engage in prostitution. Tellingly, the arresting officer – both at trial and about 20 times in his written report – repeatedly referred to Monica as a man. Her conviction is currently on appeal, and a number of organizations – including the ACLU – have filed an amicus brief on her behalf.

Unfortunately, Monica's experience with profiling is not unique. The largest national survey of transgender people to date found that one-fifth (22 percent) of respondents who have interacted with the police reported harassment by law enforcement due to bias, with substantially higher rates (29-38 percent) reported by respondents of color.

As important as it is that this guidance is explicitly LGBTQ-inclusive, the failure on the part of the Justice Department to fully extend it to state and local law enforcement agencies, as recipients of vast amounts of federal funding, is a significant omission. As more than two dozen state and national LGBTQ organizations wrote to Attorney General Holder in October, applying the guidance in this manner was particularly important given the reality that most profiling and targeting of individuals on the basis of their sexual orientation or gender identity occurs by state and local agencies. The guidance's application to state and local agencies is limited to those occasions when they are actually participating in a federal law enforcement task force. Admittedly, this is better than completely letting them off the hook; however, it does next to nothing to address what profiling of LGBTQ people like Monica Jones looks like in reality.

In addition, the failure on the part of the administration to eliminate carve-outs that permit discriminatory profiling of individuals on the basis of their race, ethnicity, or religion at the border by the Transportation Security Administration and both at and in the "vicinity" of the border by Customs and Border Protection is inexcusable. The guidance also fails to fully bar biased profiling in the national security context.

Recognizing that profiling is an LGBTQ rights issue – as this guidance does – is unquestionably a promising step forward. It is not, however, a sufficient response. The failure of the guidance to fully apply to state and local agencies, as well as the special carve-outs, underscores the continued importance of and need for an explicitly LGBTQ-inclusive End Racial Profiling Act (ERPA). In America, no one should be subject to discriminatory policing because of who they are or how they worship.

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Stepping Out of the Shadows

December 10th, 2014 No Comments   Posted in ACLU Nationwide
By Deisy Hernandez, Outreach Coordinator, ACLU of Nevada

My mother, Estela, and I arrived in the United States in 1988. I was two years old as she carried me in her arms across the Mexico-U.S. border. I was too young to understand what was happening, but my mom has told me many times why we left.

Before immigrating here, we lived on a small farm in a rural part of Oaxaca, Mexico. Her father, my grandfather, was a farmer, and we didn't always have enough to eat. She was 20 years old back then, and her family and my own father had abandoned her. She grew up in a home where my grandfather was abusive to her and her siblings. The women in her family were expected to become mothers and care takers, nothing more. She feared for herself and for me. She was afraid that we'd both be relegated to a life of poverty with little to no education. My mother dreamed of so much more for me and herself, and she knew that Oaxaca had very little to offer.

So we made the long journey to California, where I attended school and eventually graduated from a university. My mother also gave birth to my sister here, a U.S. citizen who is now in her third year of college. I became an immigrants' rights organizer in order to help other brave mothers, fathers, and children who came to this country to pursue something better. My mother has worked tirelessly since coming to the U.S. –volunteering at my school and learning English despite holding multiple jobs – and has been my driving force and inspiration.

In 2012, my life shifted, and I was finally able to work due to the Deferred Action for Childhood Arrivals program (DACA). Thanks to this temporary measure, I was able to pursue my dream job at the American Civil Liberties Union of Nevada. Although I was excited for this new chapter in my life, I felt like I was leaving my mother behind by moving from California to Nevada. However, after President Obama's executive action announcement, I can finally breathe easier, knowing my mother is safe from deportation due to the Deferred Action for Parental Accountability (DAPA) program.

Now it's my mother's time to step out of the shadows. My mother will benefit from DAPA in so many ways. Everyday things that others take for granted, like driving to the grocery store, will no longer scare her. She'll be able to travel the country to come visit me. She'll be able to work and safely demand a fair wage without fear of deportation.

DAPA is certainly not enough, but it's a stepping stone for many, like my mother, who deserve to have their humanity recognized and live a life free of fear.

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