By Jay Stanley, Senior Policy Analyst, ACLU Speech, Privacy & Technology Project
In the first half of the 20th century, Americans gained a new awareness of the malleability and manipulability of the human mind, and the result was a wave of concern over “propaganda” and other techniques of influence. Today we may be seeing a new wave of similar fears as we begin to wonder whether the ways we use and rely upon technology today are making us susceptible to new, dangerous forms of manipulation.
The first wave, in the 20th century, resulted from a number of factors. These included the discovery of a passionate, irrational unconscious by Freud and Jung, and a reaction against the seemingly mindless march toward slaughter in World War I, both of which fed into a broader disillusionment with the enlightenment rationalism of the 19th century and its faith that humans were ultimately orderly, rational beings. Other factors included the increasingly modernized advertising industry and its surprising success in manipulating consumers, and later the use of propaganda techniques by the fascists and communists in Europe.
The sudden awareness of human vulnerability to manipulation was embraced by some, but also sparked fears that the government would use it to control the beliefs of the population, rather than reflect those beliefs as it should in a democracy. Edward Bernays, considered the “father of public relations,” wrote a highly influential 1928 book entitled Propaganda, in which he argued that human manipulability was a good thing . He wrote,
The conscious and intelligent manipulation of the organized habits and opinions of the masses is an important element in democratic society. Those who manipulate this unseen mechanism of society constitute an invisible government which is the true ruling power of our country. We are governed, our minds are molded, our tastes formed, our ideas suggested, largely by men we have never heard of.
Bernays had the unrestrained faith in expertise and government that was characteristic of the era’s Progressives, but many were not so sanguine. In the first decade of the 20th century, fierce controversy and opposition was sparked by the hiring of press agents by government agencies (first by the Panama Canal Commission and then by the Forest Service and other agencies). In 1913 Congress banned the executive branch from using funds to employ “any publicity expert.” Later that decade Congress also enacted the Anti-Lobbying Act of 1919, which barred agencies from using funds “intended or designed to influence in any manner a Member of Congress to favor or oppose, by vote or otherwise, any legislation or appropriation by Congress.”
These acts were largely unsuccessful. During World War I, the government created a Committee on Public Information, an agency founded for the explicit purpose of making the U.S. public enthusiastic about entering the war through propaganda techniques. In the 1920s, after public sentiment shifted toward the view that involvement in the war was a mistake, many viewed this agency as part of the problem.
Concern and controversies were still roiling after the Second World War. In 1947, for example, the Pentagon launched a launched a large-scale lobbying and public relations effort on behalf of Truman’s proposal to institute the draft, prompting an investigation into the issue by a House subcommittee, which charged in its report that the War Department and its employees had “gone beyond the limits of their proper duty of providing factual information to the people and the Congress and have engaged in propaganda supported by taxpayers' money to influence legislation now pending before the Congress.”
In 1948, Congress enacted the Smith Mundt Act, which authorized the State Department to work to influence the attitudes and opinions of populations overseas via the Voice of America—but also banned the use of funds “to influence public opinion in the United States.”
A new wave of concern?
Concern over manipulation by government and companies has never really gone away, with fresh controversies emerging periodically, but today we may be seeing a whole new wave of concern—and of reason to be worried. There have been several stories in recent months highlighting ways that today’s technology could be used to manipulate and control. Foremost among them was the uproar over “experimentation” by Facebook, which manipulated the “mood” of posts seen by some users to see if it affected the happiness or sadness of the content posted by those users. An echo of the controversy took place a few weeks later when OKCupid wrote about its own experiments on users.
Not long after the Facebook story broke, Glenn Greenwald reported that the British spy agency GCHQ had developed a suite of methods and tools for manipulating internet content, such as spreading disinformation, manipulating the results of online polls, inflating pageview counts, and amplifying or suppressing content on YouTube.
The Facebook revelation sparked an immense amount of discussion, much of it focused upon things like informed consent, ethical oversight, Institutional Review Boards, and the potential effects on particular people such as depression sufferers (for example see these critical pieces and this defense of Facebook which, though ultimately unpersuasive, does a clear job explaining how Facebook filters content). But the most trenchant analyses looked past the ethics of experimentation to broader questions: what does this incident tell us about the growing power of institutions to manipulate and control individuals?
As Kate Crawford pointed out in the Atlantic,
some truly difficult questions lie in wait: What kinds of accountability should apply to experiments on humans participating on social platforms? Apart from issues of consent and possible harm, what are the power dynamics at work? And whose interests are being served by these studies?
Putting her finger on what I think was the most significant thing about this story, she writes that it gives us a glimpse of “how highly centralized power can be exercised.”
Similarly, Zeynep Tufekci, writes,
these large corporations (and governments and political campaigns) now have new tools and stealth methods to quietly model our personality, our vulnerabilities, identify our networks, and effectively nudge and shape our ideas, desires and dreams. These tools are new, this power is new and evolving…. I identify this model of control as a Gramscian model of social control: one in which we are effectively micro-nudged into “desired behavior”…. Seduction, rather than fear and coercion are the currency, and as such, they are a lot more effective.
The new wave of consciousness over our potential to be manipulated and controlled may also include the network neutrality issue, which is in great part about such fears.
There are two lessons we could learn from looking back at the earlier history of such fears. One could be that we’ll get over this as we did fears around advertising manipulation, and today’s new concerns will come to seem quaint as do some of the old ones. But a better lesson, I would argue, is that the fears that were identified last century were for the most part entirely legitimate and well-founded, that “techniques of influence” have been abused in many ways—not least by playing a key role in some of the greatest catastrophes of the 20th century—and now we have a new reason to worry and to insist upon checks and balances as our government uses technology in new ways, and as we allow manipulable technologies like Facebook to become ever-more-central to the way we communicate, gather information, and relate to others.
By Laura W. Murphy, Director, ACLU Washington Legislative Office
This piece originally ran at POLITICO Magazine.
This week, Patrick Leahy, the Democratic senator from Vermont, introduced a revised version of the USA Freedom Act, a bill to finally start pulling the reins on America's out-of-control surveillance state. The ACLU supports the measure, though it is not a perfect bill. To understand why, it helps to think about something seemingly unrelated: crack cocaine.
During the first term of President Ronald Reagan's administration, hysteria over the crack "epidemic" led Congress to enact strict sentencing laws that punished crack offenses much more severely than powder cocaine—at a 100 to 1 ratio. Two pennies worth of crack would land you as much jail time as half a kilo of powder.
The ACLU thought that was wrong, and so started fighting that fight in the early 1980s. It took us more than two decades, but in 2010 we finally had a compromise reform bill on the floor that actually stood a shot at passage. Unfortunately, it didn't eliminate the disparity altogether, but only reduced the ratio to 18 to 1.
Reform advocates were at a crossroads. Maximalists urged opposition despite the fact the bill would, in a very real way, make life better for thousands of people and begin to reduce the severe racial and ethnic inequality in our prison system. Pragmatists, fearing that opposition to the bill would preclude any reform at all, urged support.
It was a painful compromise, but the ACLU ultimately supported the bill. It passed, astoundingly, with overwhelming support in both chambers.
And then something amazing happened. Conservative lawmakers, concerned about government waste, increasingly came to the table to support criminal justice reform. Liberals realized they could vote their conscience on criminal justice without accusations of being "soft on crime." It has not been easy and there have been many steps backward, but in recent years, we've seen greater public opposition to mandatory minimum sentences and real movement on things like reducing penalties for low-level drug offenses.
Which brings us to the USA Freedom Act. It's not a perfect bill. As with virtually any law, there are ambiguities in the text, which, in this case, could be read abusively to allow the collection of a large amount of sensitive information on many innocents.
But it is a vast improvement on the legislation that passed the House in May, which was weakened at the last minute, leading many privacy advocates and technology companies to pull their support. Leahy's bill would reduce the overall amount of private information being collected by the National Security Agency and other government agencies, which would, much like the Fair Sentencing Act, pay real privacy dividends for real people.
Passing the USA Freedom Act would also present a clear inflection point in the surveillance debate. For almost 20 years, going back even before the Patriot Act to a 1996 law passed in the wake of the Oklahoma City bombing, the freight train has resolutely barreled toward unchecked surveillance authority. Here, the proponents of surveillance reform who pulled support can take a lot of credit for the progress made in the Senate, which will give them real leverage in the next fight.
In Washington, progress begets progress. It's exceedingly rare that a maximalist strategy on any issue—from reproductive freedom and LGBT rights to immigration reform and pay equity—succeeds in creating immediate, dramatic change. To give just one example, the Civil Rights Act of 1964, often and rightly seen as the watershed in the movement, wouldn't have passed Congress without the groundwork laid by the weaker civil rights acts of 1957 and 1960.
That said, as with all of these examples, it's crucial not to rest on any laurels. Not only should Congress pass the USA Freedom Act, but much more needs to be done to address the erosion of checks and balances on government surveillance and other national security authorities.
Specifically, Congress must next tackle the NSA's use of Section 702 of the Foreign Intelligence Surveillance Act to scoop up vast quantities of emails, phone calls, text messages and other international communications of individuals suspected of no wrongdoing, and then search them without a warrant. Congress and the president must also reform Executive Order 12333, the Reagan-era measure that governs the collection of intelligence overseas. As some have argued, the significant power claimed under 12333 may be an even greater threat to America's democratic institutions than the programs we've learned about in the past year.
Despite many more battles to be fought on surveillance reform, we must seize the opportunity before us. Since the tragic events of Sept. 11, 2001, the NSA's exponential surveillance buildup seemed like something huge and seemingly unstoppable—driven resolutely forward by fear, congressional and executive branch support, unlimited funding, voter inertia and the shroud of secrecy. But right now Congress has powerful legislation that can chart us on a new course. The oft-heard saying "a journey of a thousand miles begins with a single step" applies here. That first step begins with Congress passing the USA Freedom Act.
By Sarah Solon, Communications Strategist, ACLU
Before he started singing with muppets, John Oliver showed us a lot of boxes of Cheerios. This was in the second minute of his epic rant on the state of the U.S. criminal justice system last week.
Varieties of Cheerios – from "Frosted" to "Fruity" – are the only thing that's expanded as quickly as the number of people we throw behind bars, according to Oliver. He attributes this boom in incarceration to doing away with a mental health system, to excessively long sentences, and to a War on Drugs that has failed to impact drug use and forced millions under correctional control.
He's right. For years we've been told that in order to have safe streets, we need to aggressively incarcerate large swaths of the population. But that simply isn't true. Many people end up behind bars for reasons that have very little to do with public safety.
And that's why we're continuing to see the crime rate fall even as we begin to cut unnecessary incarceration. It's happening in state after state.
This is good news: We can cut crime and protect communities while ending our overreliance on incarceration. Our new infographic shows just some of the states that have successfully lowered their crime rate and brought down their incarceration levels. It's possible to do both. And for the health of our communities, it's time for the rest of the states to catch up.
The trend of higher incarceration leading to higher crime shouldn't surprise us. We know that the rapid expansion of our criminal justice system reached a fever pitch over the last 40 years. We know that far too many things can land you behind bars, things like homelessness or drug addiction or mental illness. And we know that courts have been meting out irrationally long sentences, like 50 years for stealing a $35 rack of ribs.
When we remove people from their communities for reasons that have no business being crimes, too often for decades on end, subject them to dangerous and dirty prisons, and then send them back home where they will face barrier after barrier in their attempt to find a job or housing, it hardly sets people up for success.
Not only that, but putting millions of people behind bars does real harm to families, to our communities, to our states' budgets, to our economy, and to the hope of eradicating institutionalized racism. The list goes on.
So next time someone tries to tell you that stuffed prisons make our streets safer, send them this link. We all want to live in safe communities, and to do so we must insist that our criminal justice policies actually enhance safety and not just the illusion of it. The truth is that mass incarceration undermines safety and it's time to make it a thing of the past.
By Meghan Groob, Media Strategist, ACLU Washington Legislative Office
Here's a hypothetical for you: Someone approaches you on the street and offers you a big stack of cash with no strings attached. Do you take it?
Of course you do.
As much as we'd like to pretend otherwise, money matters. And that's why the fact that the Smarter Sentencing Act would save taxpayers $24 billion over 20 years shouldn't be overlooked by Congress.
Even without the savings, the Smarter Sentencing Act is an amazing piece of legislation. It achieves the criminal justice reform our country so desperately needs by reining in excessively long sentences, which are destroying families and creating bloated, overcrowded prisons. That alone makes the bill worth passing.
But the latest news that the Smarter Sentencing Act would save $7.3 billion over 10 years and $24 billion over 20 years, which was revealed by FireDogLake last week, makes passing this bill a no-brainer.
Unfortunately, we're running out of time. Members of Congress go home on August 1st for a month-long break, and then it's election season. While Congress can still vote on the Smarter Sentencing Act after they come back from August recess, the clock is running out.
With only 3 days left before Congress goes on break for a month, we need you to send a message to your representatives today. Just click on this link, sign your name, and your message will automatically go straight to your members of Congress. It's that easy.
Congress shouldn't leave money on the table. By scheduling a vote this week before they leave for a month, Congress can take real action to roll back some extreme federal mandatory minimum sentences and save taxpayers billions of dollars in the process.
By Neema Singh Guliani, ACLU Washington Legislative Office
The race is on.
Senator Leahy (D-Vt.) introduced today a new version of the USA Freedom Act to rein in NSA surveillance, and only 10 legislative days remain to get it through the Senate before the November elections.
To put this in historical context: If the Senate passes the bill, it will be the first time since passage of the Foreign Intelligence Surveillance Act in 1978 that the chamber has taken action to constrain the intelligence community, and the first time Congress has a real shot at restoring the crucial privacy protections lost in the Patriot Act. To quote Joe Biden during the signing of the healthcare bill, "This is a big f---ing deal."
The bill represents a compromise between companies, privacy groups, Senate negotiators, the White House, and the intelligence community. It's not perfect, and it only deals with one narrow surveillance authority, but here's why the ACLU supports the bill as introduced:
It ends bulk collection and significantly limits the ability of the government to conduct dragnet surveillance under Section 215 of the Patriot Act.
You might remember that one of our main criticisms of the House-passed version of the USA Freedom Act was that it contained a broad definition of "specific selection term" (SST), which, simply put, is the term that the government uses to describe the records it wants to collect. As it was approved in the House, that definition could be abused to permit the collection of everyone's records in an entire area code or zip code, even an entire network server.
The new version of the bill creates an exhaustive list of permissible SSTs for certain programs. If the new version works properly, the government will no longer be able to abuse the provision that led to the collection of the call detail records of virtually everyone in America.
For programs without an exhaustive list of SSTs, the bill contains language indicating that the SSTs must be narrowly limited, and it explicitly prohibits broad SSTs based on, for example, an entire city or telephone service provider. The intent of these provisions is to put an end to other bulk or "bulky" collection programs, such as the CIA's reported bulk collection of certain financial data. And, as an additional protection, in some cases, the bill also explicitly requires the government to destroy irrelevant information that it collects.
If the government abuses its authority, this bill could ensure we would find out about it.
If the Snowden revelations taught us anything, it was that the government does a whole lot of things that the public and members of Congress don't know about. In response, this bill contains provisions that would require the Foreign Intelligence Surveillance Court (FISC) to release opinions or at least relevant information about important opinions.
In other words, if the court decides to interpret existing law to permit collection of everyone's email in Washington, D.C. – we've got a better shot at knowing.
The bill would place someone inside the FISC to advocate for us.
Currently, in secret Foreign Intelligence Surveillance Court proceedings, there are two parties – the judge and the government attorney arguing for surveillance. That's like a prosecution with no defense attorney. This bill creates a special advocate within the FISC who can advocate for the privacy interests of Americans and innocent people around the world. While the advocate would only get to participate in proceedings at the judges' discretion, judges would need to report how often they decide not to appoint an advocate in important cases.
Now for the bad news: The bill still isn't perfect.
Improvements need to be made to further narrow the definition of SST, provide strict time frames for destroying all data on innocent people, eliminate loopholes that could be exploited to avoid disclosing relevant information in FISC opinions, and grant the special advocate greater authority to proactively participate in intelligence court proceedings.
The bill also focuses entirely on Section 215; it doesn't even touch the abuses occurring under Section 702, Executive Order 12333, or other authorities. In other words, we're running a marathon and this bill only gets us to mile five.
So what comes next?
The Senate needs to schedule a vote on the bill, and, hopefully, it will emerge from the chamber unscathed. Then either the House and Senate come to an agreement reconciling the different versions of the bill, or the House decides to vote on the Senate version of the bill.
Finally, if all the stars align, and the president signs a bill that provides real reform, millions of records that would have been vacuumed up under existing law will remain safe from government collection.
And then Congress can start work on the next NSA reform bill.
By Mitra Ebadolahi, Border Litigation Staff Attorney, ACLU of San Diego & Imperial Counties
On the night of October 10, 2012, U.S. Border Patrol agents shot and killed Jose Antonio Elena Rodriguez. At the time of the shooting, Jose Antonio was unarmed and walking peacefully down a major street in Nogales, Mexico, directly across from the metal border fence separating the United States and Mexico. An autopsy report revealed that Jose Antonio had been struck by 10 bullets, virtually all of which entered his body from behind.
He was sixteen years old.
Jose Antonio's funeral drew scores of mourners, who along with his family, were outraged at the cross border shooting of an innocent Mexican boy. His grieving mother, Araceli Rodriguez, told reporters that her youngest son dreamed of being a soldier, so he could fight the growing violence in his country.
According to press reports, the U.S. Border Patrol acknowledged that surveillance video of the shooting exits, but the footage has never been publicly released. To this day, we do not know the names of the agent or agents involved in the shooting. As far as we know, not one Border Patrol agent has been disciplined in any way for Jose Antonio's senseless death.
Consider these staggering figures: Since 2005, on-duty Border Patrol agents and CBP officers have killed at least 42 people. In 2011-2012 alone, Border Patrol agents caused at least 15 deaths, 13 of which resulted from shootings. The Police Executive Research Forum – a non-profit, nonpartisan police research and policy organization – found last year that CBP had not adopted many law enforcement best practices regarding use of force and concluded that this contributed to agents' excessive use of force in specific instances.
To hold the Border Patrol accountable for any abuses, take action here.
Meanwhile, the agencies have ignored or summarily dismissed hundreds of allegations of misconduct. This past May, the American Immigration Council released a damning report examining how Border Patrol and CBP responded to complaints of physical, sexual, and verbal abuse. The report concluded that CBP officials "rarely take action against the alleged perpetrators of abuse." On the few occasions when CBP did formally respond to a complaint, the response was "No Action Taken" 97 percent of the time.
R. Gil Kerlikowske, CBP's new commissioner, recently conceded that the agency needs "to be better at admitting when we're wrong or where we've made a mistake." Thus far, however, the commissioner has not taken any affirmative action to publicly hold specific Border Patrol agents accountable.
Today the ACLU Immigrants' Rights Project and the ACLU Border Litigation Project filed a federal lawsuit in Arizona on behalf of Araceli Rodriguez, Jose Antonio's mother, to vindicate her son's constitutional and human rights. The case is, at its core, a challenge to the Border Patrol's unwarranted use of deadly force along the U.S.-Mexico border. Given the federal government's abysmal track record when it comes to accountability for egregious rights violations, our courts have a critical role to play. They must ensure that innocent children like Jose Antonio Elena Rodriguez are not gunned down in cold blood without consequences.
It is time for the Border Patrol's Age of Impunity to end.
As Congress debates how to respond to children's migration from Central America, we must not forget that Customs and Border Protection is in dire need of improved oversight and accountability. Here are three examples of how the system is failing and what the ACLU is doing to help:
- Sergio, 15, was fatally shot in the face by a Border Patrol agent because he was allegedly throwing rocks at the agent across the border. His family sued the U.S. government, denying that Sergio threw anything, but the district court held that because Sergio was a noncitizen on the Mexican side of the border when he was killed he had no constitutional rights.
Sergio's family appealed the district court decision, and the ACLU and its border affiliates filed an amicus brief. The Fifth Circuit Court of Appeals ruled that the Constitution can apply outside the territorial limits of the United States in the circumstances that led to Sergio's death, squarely rejecting the government's argument that constitutional rights end at the border.
To see ACLU's recommendations on CBP use of force, click here.
- Jane*, 54, was stopped while returning to the United States from Mexico. She was frisked and strip searched by CBP. When they were unable to find contraband, CBP handcuffed and transported Jane to the University Medical Center of El Paso. For six hours, Jane was subjected to an observed bowel movement, X-ray, speculum exam, rectal exam, vaginal exam, and a CT scan. She was released without charge, but was acutely emotionally and mentally traumatized from the painful cavity searches she was forced to endure.
Jane, represented by the ACLU of Texas and the ACLU of New Mexico, sued the El Paso hospital as well as CBP personnel. The hospital settled the lawsuit for $1.1 million and agreed to change its policies to prevent any future abusive searches. The claims against CBP personnel, however, are still pending in federal court.
- Felipe*, 10, fled from El Salvador to the United States after watching the murder of his father, who was targeted because he ran a rehabilitation center for individuals attempting to leave gangs. Felipe is set to stand alone and represent himself before an immigration judge at a hearing scheduled for this September. While Felipe has a case for asylum, he will be forced to face a trained prosecutor alone and is statistically far more likely to lose his case without an attorney to present his side of the case.
On behalf of Felipe and children like him, the ACLU and allies recently filed a nationwide class-action lawsuit challenging the federal government's failure to provide them with legal representation in deportation hearings.
To sign a petition calling for President Obama to provide legal counsel to all children facing deportation, click here.
While these results are all steps in the right direction, there is more work to be done in each of these cases. And, ultimately, litigation is only one facet of oversight and accountability. New leadership at DHS and CBP must follow through on reforms to address each of these failures.
* Pseudonym to protect identity and privacy of the individual
By Alex Sinha, Aryeh Neier Fellow, Human Rights Watch & ACLU
If I can't report a story without keeping a source safe, I'm not going to report a story.
– Jonathan S. Landay, Senior national security and intelligence correspondent, McClatchy Newspapers
It turns out that surveillance affects more than just privacy.
We know the government collects massive amounts of data about us, including bulk domestic calling records in the millions, many of our international emails and calls, and much more. Those programs have obvious privacy implications, but more than a year since the first Edward Snowden disclosure, we need to focus on the other democratic pillars that government spying has imperiled.
A new report, produced jointly by the ACLU and Human Rights Watch, shows that large-scale surveillance by the U.S. government is undermining the work of journalists and lawyers. Many leading journalists covering national security, law enforcement, and intelligence have found sources and information increasingly hard to come by. Surveillance is compounding a host of other challenges faced by journalists lately, like a significant spike in the prosecution of their sources and new government initiatives to minimize even minor leaks.
Many of the journalists I interviewed for the report described struggling to find ways to protect their data and communications, adopting new and sometimes elaborate techniques to do so. Encryption? Check. Air-gapped computers? Check. And many of these journalists are now using "burner phones," going back to payphones, or even trying to contrive ways to bump into sources in person. These techniques can take extra time. Combined with sources' growing reluctance to speak – even about unclassified matters that the government has no business protecting in the first place – that means reporters are producing stories at a slower rate.
The result? We have less information about our own government.
Lawyers need to modify their practices, as well. The Snowden revelations have made it clear that attorneys need to go to new lengths to maintain their clients' confidences. Increasing challenges in communicating securely make it harder for them to build trust with their clients and to develop legal strategies with clients and co-counsel. A number of lawyers have begun adopting techniques similar to those used by journalists.
Both journalists and lawyers also emphasized that taking such elaborate steps to do their jobs makes them feel like they're doing something wrong. As one lawyer put it, "I'll be damned if I'm going to start acting like a drug dealer in order to protect my client's confidentiality."
That feeling is understandable, and it is a profound problem that so many others shared it, given that journalists and lawyers play such integral roles in our democracy. We depend on the press to tell us what our government is doing, and without that information, it is much harder to hold our government to account when it missteps or overreaches. In the age of drones, mass surveillance, and indefinite detention, we need coverage of national security and intelligence as badly as ever.
The same goes for lawyers – especially defense lawyers. Confidentiality and attorney-client trust are crucial for effective representation, cornerstones of fairness in the justice system.
We know that mass surveillance can obliterate privacy. But more than that is at stake. Without privacy, essential democratic processes are in danger.
By Marcellene Hearn, Senior Staff Attorney, ACLU National Security Project
A court handed down a huge victory yesterday, for two men who were rendered to a secret prison in Poland and tortured by the CIA. But it wasn't in an American court. And it wasn't the United States that was held to account.
In two landmark decisions, the European Court of Human Rights found "beyond reasonable doubt" what the world has long known – that the CIA ran a black site at Stare Kiejkuty, Poland, and that it tortured al-Rahim Hussayn al-Nashiri and Husayn Abu Zubaydah there. It also found that Poland was complicit in the CIA's "rendition, secret detention, and interrogation operations" in that country.
The court ruled that Poland breached the European rights treaty in multiple ways. Most notably, Poland violated the prohibition on torture by facilitating the CIA's torture, allowing the men to be taken out of Poland to another secret detention facility where they were likely to be tortured again, and failing to conduct a prompt, thorough, and effective investigation. In addition, Poland infringed on the men's fair trial rights by permitting them to be sent to Guantánamo in June 2003 where they would face trial by military commission. Such a trial would be "a flagrant denial of justice," the court wrote.
To remedy these violations, the court ordered Poland to pay 100,000 euros (about $130,000) to the two men who are back at the Guantánamo prison after having been transferred through multiple CIA black sites. Further, the court ruled, because Mr. al-Nashiri currently faces the death penalty in the military commissions, Poland must seek "assurances" from the United States that it will not execute him.
That this ruling came out of the European court only underscores the accountability gap in the United States where, to date, every case brought in our courts by victims of the torture program has been dismissed – on state secrecy or other grounds – without even considering the merits of the victims' claims.
While the European court stressed the importance of transparent investigations when serious human rights violations are at stake, the United States continues to insist that even the locations of the CIA's secret prisons are classified. The Obama White House is currently reviewing the Senate Intelligence Committee's several hundred page summary of its 6,000-page investigation into the CIA torture program for release later this year; there are reports that the names of the countries that participated in the torture program may be blacked out. Especially now that the European court has confirmed so many details about Poland's role in the CIA's torture program, it would be absurd if those facts are redacted from the Senate torture report.
The torture report is widely predicted to address the CIA's torture of al-Nashiri and Abu Zubaydah. A small – but telling – test for transparency will be whether references to these two men and to Poland appear in the public version. The American public shouldn't have to get the truth from a European court.
The road to Artesia from Las Cruces, New Mexico, is a scenic three-hour drive past pristine white sand dunes, through chilly, foggy mountain ranges, and across flat, open pampas spotted with yucca plants. Artesia, itself, is a dusty town of around 11,000 people, mostly farmers, ranchers, and workers at local oil wells and refineries.
I traveled that road myself this week, on my way to the new Family Residential Center in Artesia run by U.S. Immigration and Customs Enforcement (ICE). This facility currently houses around 620 women and children from Honduras, El Salvador, and Guatemala. It’s the first step in the federal government’s ill-advised plans to dramatically expand the warehousing of vulnerable children and their parents in facilities throughout the country, at a cost to taxpayers of hundreds of millions of dollars.
I was in Artesia with a small group, representing more than 20 civil and human rights organizations, to tour the facility. For the detained families, whom U.S. Customs and Border Protection had flown from the Lower Rio Grande Valley to El Paso before ICE put them on buses to Artesia, it must feel like they landed on the moon.
The families are held in the dormitory section of a federal law enforcement training center. Today these dorms contain bunk beds and cribs. Additional mobile units have been converted to accommodate the growing number of families.
We spoke to about 30 women, all mothers, who told us they feared returning to their home countries because they or their children had received death threats. Many said they had witnessed or experienced the assassination of a spouse, sibling, or neighbor. In their faces, I saw fear, concern, and desperation. We learned that the average age of the children there was six and a half years old.
In theory, our laws are clear. We do not deport families back to countries where they would face persecution or torture. The right to a fair process is a fundamental American value, enshrined in our Constitution. Yet the majority of families detained at Artesia never get a hearing, and they have little to no access to legal assistance. As a consequence, our nation will deport many women and children who may have legitimate claims to asylum or other legal status back to countries where they face violence, exploitation, and even death.
One mother told us that she had witnessed the death of her sister’s husband but feared going to the police in her country because she knew they would not help. She described how she barely escaped with her two small daughters, how she had spent all of her savings to get to safety, how many along the way wanted to exploit her and her children, and how she then finally arrived in the United States and turned herself in to U.S. Border Patrol agents.
"I thought, me and my children, we are finally safe," she told us. "Because here in the U.S., I know they follow the laws."