The US’s Story of Torture Doesn’t Have to End With Impunity

December 9th, 2014 No Comments   Posted in ACLU Nationwide
By Hina Shamsi, Director, ACLU National Security Project

After five long years of investigation, declassification, and redaction – not to mention outright obstruction by the CIA – the Senate Intelligence Committee today shone more light on CIA torture and made a historic and necessary contribution to public scrutiny, debate, and our nation's values.

The release of the Senate torture report's 525-page executive summary confirms that state-sanctioned torture is an American story, and no longer one we can ascribe only to odious foreign regimes. It's a story the CIA wrote on the minds and bodies of its victims, documented in thousands of cables, and lied about to its oversight institutions and the public. It's a story not just of perpetrators, but also torture architects in the upper echelons of the Bush administration who authorized the torture program and wrote memos seeking to justify it. It's also a story about other Americans officials who risked their careers and objected to torture because they knew it violated basic human decency, corrupted the nation's ideals, and undermined our national security. And it's a story about those who were tortured in horrific ways by a government that broke the very laws it's responsible for upholding.

This story isn't complete. Maybe, in fact, we're only reaching its climax.

The release of the Senate's torture report summary is a tipping point and a reminder that the United States has never fully reckoned with a past that includes waterboarding, stress positions, beatings, sleep deprivation, threats of harm to children and other family members, among many devastatingly cruel acts. Once again, Americans, all of us, have an opportunity to choose how we end this story, whether that's responsibly, with a full return to our laws and values, or shamefully, by failing to act now that the report summary is released. A conclusion that begins to heal wounds and rebuild U.S. credibility as a defender of rights instead of a perpetrator of rights violations consists of five parts, all of which work together to ensure that our nation never tortures again.

Here is a blueprint for accountability:

Appoint a Special Prosecutor. The attorney general should appoint a special prosecutor with the full authority to conduct an independent and complete investigation of Bush administration officials who created, approved, carried out, and covered up the torture program. The crime of torture has no statute of limitations when torture risks or results in serious injury or death, and the U.S. government has the obligation under international law to investigate any credible evidence that torture has been committed. If there's sufficient evidence of criminal conduct – and it's hard to see how there isn't –the offenders should be prosecuted. In our system, no one should be above the law, yet only a handful of mainly low-level personnel have been criminally prosecuted for abuse.

That is a scandal.

CIA Reform. The CIA's spying on Senate Intelligence Committee staffers investigating the agency's use of torture is one more damning piece of evidence that the CIA urgently needs to be reformed. Congress should ensure the CIA never tortures again by taking two steps. First, Congress must prohibit the CIA from operating any detention facility or holding any person in its custody. Second, Congress should subject the CIA to the same interrogation rules that apply to the military. President Obama rightly ended the torture program when he assumed office. Now it's Congress' turn to make sure the CIA never again operates free of the checks and balances our democratic system demands.

Apologize to Victims. With only a handful of exceptions, the U.S. government has not officially acknowledged its torture victims let alone extended formal apologies to those men, women, and children for the horrors our nation inflicted on them. With the Senate torture report's release, President Obama should rectify this.

Apologies alone won't do, however.

The United States has a responsibility under international law to provide compensation and rehabilitation services to those who suffered torture or other cruel, inhuman, or degrading treatment at its behest. Restitution is necessary for healing to start. It will also signal to the rest of the world and future generations that torture as U.S. state policy was an aberration that America promises never to repeat.

Honor Courage. Many U.S. service members and civilian officials risked their careers and reputations by objecting to torture after learning it was official U.S. policy. They understood that torture would harm lives, violate the law, undermine national security, and corrupt our institutions – including the military as well as the CIA.

These largely unsung men and women are heroes, and President Obama should formally honor their courage and their commitment to our most fundamental ideals of treating captives with dignity and respect, which stretches back to the Revolutionary War. By honoring these men and women of conscience, the president will also send a strong message to other public servants and officials that they need not fear coming forward when their government does wrong.

Full Disclosure. Even with the release of the redacted Senate report, secrecy still obscures the full extent of U.S. government abuse. If the Obama administration is serious about transparency, it will remove the redactions it forced the Senate to include in the torture report and publicly release all 6,700 pages in full. Complete transparency, however, cannot occur until the government releases President Bush's 2001 memo authorizing the creation of CIA black sites, the CIA's cables on the use of waterboarding and other brutal interrogation techniques, and the photographic evidence of U.S. prisoner abuse at Iraqi and Afghan detention facilities.

* * *

The other, shameful option is to continue doing what America has done all along on accountability: next to nothing.

If we choose to end the story that way, and it is a choice, there will be serious consequences for who we are as a nation. As torture survivor Juan E. Méndez, the United Nations special rapporteur on torture, has shown, history teaches that countries that try to bury or ignore their serious human rights abuses are more likely to commit the same transgressions again.

Impunity, therefore, becomes complicity.

How the story of America's descent into the torture chamber ends hasn't been written yet. We can start righting the wrongs of the past, but only if we have the courage to face our demons fully, and show the world our commitment to putting the darkness behind us.

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Pardon Bush and Those Who Tortured

December 9th, 2014 No Comments   Posted in ACLU Nationwide
By Anthony D. Romero, Executive Director, ACLU

This piece originally appeared on The New York Times opinion page.

Before President George W. Bush left office, a group of conservatives lobbied the White House to grant pardons to the officials who had planned and authorized the United States torture program. My organization, the American Civil Liberties Union, found the proposal repugnant. Along with eight other human rights groups, we sent a letter to Mr. Bush arguing that granting pardons would undermine the rule of law and prevent Americans from learning what had been done in their names.

But with the impending release of the report from the Senate Select Committee on Intelligence, I have come to think that President Obama should issue pardons, after all — because it may be the only way to establish, once and for all, that torture is illegal.

That officials at the highest levels of government authorized and ordered torture is not in dispute. Mr. Bush issued a secret order authorizing theC.I.A. to build secret prisons overseas. The C.I.A. requested authority to torture prisoners in those "black sites." The National Security Council approved the request. And the Justice Department drafted memos providing the brutal program with a veneer of legality.

My organization and others have spent 13 years arguing for accountability for these crimes. We have called for the appointment of a special prosecutor or the establishment of a truth and reconciliation commission, or both. But those calls have gone unheeded. And now, many of those responsible for torture can't be prosecuted because the statute of limitations has run out.

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A Dangerous Precedent: Why Allow Racial Profiling at or Near the Border?

December 8th, 2014 No Comments   Posted in ACLU Nationwide
By Chris Rickerd, ACLU Washington Legislative Office

At a moment when the federal government is taking racial profiling seriously, it was gratifying to read that Attorney General Eric Holder "told colleagues that he believed that border agents did not need to consider race or ethnicity." Racial profiling is demeaning, offensive to American values, and ineffective. As today's revised Department of Justice (DOJ) guidance makes clear, "it is patently unacceptable...for law enforcement officers to act on the belief that possession of a listed characteristic [like race, religion, national origin, or ethnicity] signals a higher risk."

Then came the shock that the attorney general's views didn't win out: Customs and Border Protection (CBP) and the Transportation Security Administration (TSA) have exemptions to use racial profiling in "screening and inspection for border and transportation security" and "U.S. Border Patrol interdiction activities in the vicinity of the border and ICE Homeland Security Investigation (HSI) interdiction activities at ports of entry."

Yes: The same administration rightly trumpeting progress in the DOJ guidance is at the same time giving a green light for TSA and CBP to racially profile at and near our borders – a vast zone because CBP claims authority up to 100 miles in from any border.

CBP has a horrible track record of discriminatory enforcement against people of color. The ACLU of Washington settled a lawsuit last year where one of the plaintiffs, Ernest Grimes, was an African-American correctional officer (and part-time police officer) who had the misfortune of crossing paths with a Border Patrol agent. The encounter is telling and representative of the abuse felt at U.S. borders: A Border Patrol agent stopped Grimes' vehicle, approached with his hand on his weapon, and interrogated him about immigration status while the correctional officer was in uniform. The New York Civil Liberties Union has documented racial profiling by CBP on buses and trains. A racial profiling lawsuit in Ohio revealed a Border Patrol supervisor's "racial slurs to refer to Latino workers."

A local business owner in Olympia, Washington, said he's "never seen anything like" Border Patrol's racial profiling, before summarizing the situation around the Northern border: "Why don't they do it to the white people, to see if they're from Canada or something?" he said. "If they did that to the white people, there'd really be an uproar."

At the Southwest border racial profiling is sadly routine. CBP refuses to release data that would allow the public to assess this profiling, so local residents in Arivaca, Arizona, decided to monitor a checkpoint themselves. Their findings based on more than 100 hours of observation over two months are 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.

Some within the Department of Homeland Security (DHS) want to racially profile at or 100 miles "near" the border because, as an anonymous immigration enforcement official says, "There's a very specific clientele that we look for." That's code for Latinos and all people of color who look to DHS like they don't "belong." DHS and President Obama are making an enormous mistake by failing to ban racial profiling fully: The damage to community trust will worsen regardless of efforts to convince minorities that DHS only racially profiles a little bit.

However much racial profiling will continue to happen – and the accumulated evidence against DHS's border police says that it will – every person of color encountering an officer or agent will doubt whether today's official policy allowing biased policing was used against them. DHS and the White House today missed an opportunity to set the administration completely apart from the Sheriff Joe Arpaios of our borderlands.

This fight is far from over: President Obama and DHS Secretary Jeh Johnson must explain why they weren't ready to join Attorney General Holder in forbidding every federal agency's racial profiling and move quickly to cover all TSA and CBP practices.

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Required Reading: Prequels to the Torture Report

December 8th, 2014 No Comments   Posted in ACLU Nationwide
By Marcellene Hearn, Senior Staff Attorney, ACLU National Security Project

As early as tomorrow, the long-awaited Senate torture report will finally see the light of day. If all goes as planned, the Senate Intelligence Committee will release the roughly 500-page executive summary of its 6,000-page report concerning the CIA's "rendition, detention, and interrogation" program. The report is said to be highly critical of the program.

Former President Bush came out over the weekend to defend the CIA against the report's conclusions. That's not surprising, considering his own responsibility for the CIA's brutal policies.

Related: The Torture Architects [Interactive Infographic]

Despite attempts to keep the program secret, details of it came out, bit by bit, in documents released over the years. Some, but not all, of the most shocking documents – including the memos comprising the legal infrastructure of the program – are listed below. Hopefully by tomorrow, the story they tell will be more complete.

The memos

In 2002 and 2003, Justice Department lawyers issued a series of legal memos that laid the foundation for the Bush administration's torture program. Two of the most famous are the twin August 2002 memos authored by Deputy Assistant Attorney General John Yoo and signed by Assistant Attorney General Jay S. Bybee.

One of those memos twisted the definition of torture, concluding that in order to violate the law prohibiting torture, the resulting pain "must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." It also concluded that prosecution under the law might be barred as an infringement on the president's war authority.

The other memo approved the CIA's use of torture techniques including waterboarding, cramped confinement, and sleep deprivation on Abu Zubaydah who was being held at a secret prison in Thailand. He would eventually be waterboarded 83 times.

Revelations of torture at Guantanamo Bay

In 2005, TIME magazine published a previously secret interrogation log describing brutal 20-hour interrogation sessions of Mohammed al-Qahtani at Guantánamo from November 23, 2002, to January 11, 2003. On December 2, 2002, Secretary of Defense Donald Rumsfeld approved the application of harsher interrogation techniques on Mr. al-Qahtani. Among other things, the log describes sleep deprivation, forced shaving, use of the "Invasion of Space by a Female" technique, and in one incident, interrogators forcing Mr. al-Qahtani to bark like a dog.

Rumsfeld okays the use of torture at Guantanamo

In this memo from 2002, Rumsfeld authorized the military to use harsh interrogation techniques including stress positions, nudity, forced grooming, use of phobias, pushing, and grabbing. He famously added a note next to his signature:

I stand for 8-10 hours a day. Why is standing limited to 4 hours?

At the time, Navy General Counsel Alberto Mora raised concerns that some of the methods authorized in the memo could rise to the level of torture. Mora later documented his persistent attempts to get the Defense Department to change course in a 22-page memo written in July 2004.

Yoo backs use of torture by military interrogators

A 2003 memo, written by Justice Department attorney John Yoo, gave the Defense Department expansive authority to torture and abuse detainees. It was premised on the same flawed analysis that Yoo had adopted in the 2002 memos provided to the CIA.

The CIA's inspector general launches an investigation

In May 2004, CIA Inspector General John Helgerson issued a report of his internal investigation of possible illegal conduct in the CIA's secret prisons. The report detailed the use of torture techniques that were never authorized by the Justice Department, including mock executions, "racking" a gun near a detainee's head, revving a power drill while a detainee stood naked and hooded, and forcing detainees to inhale smoke until they vomited. The report also revealed that the CIA waterboarded Abu Zubaydah 83 times and Khalid Sheikh Mohammed 183 times. The report was released to the public in redacted form in 2009 as a result of the ACLU's FOIA lawsuit.

Torture Excerpt: "In Kabul, the treatment got worse. I was punched and slapped in the face and on the back to the extent that I was bleeding. While having a rope tied round my neck and being tied to a pillar my head was banged against the pillar repeatedly."

FBI agents report abuses

In a series of emails released in an ACLU FOIA, FBI agents detailed the abuses they witnessed at Guantanamo Bay. In the most notorious of these, from August 2004, an FBI agent described detainees chained to the floor and left without water or food for 24 hours or more, who had urinated or defecated on themselves. One detainee was described as:

…almost unconscious on the floor, with a pile of hair next to him. He had apparently been literally pulling his own hair out throughout the night.

Torture in aggregate

In December 2004, the CIA provided a backgrounder to the Justice Department to use in drafting more legal memos authorizing torture. It describes step-by-step how the CIA carried out unlawful extraordinary renditions and interrogations. It also demonstrates that the CIA routinely applied a rapidly accelerating set of harsh interrogation techniques, including nudity, sleep deprivation, dietary manipulation, slaps, facial holds, and attention grasps to nearly every "high-value" detainees. Finally, it details other interrogations techniques in their arsenal including walling, water dousing, the use of stress positions, wall standing and cramped confinement. The "day-to-day look" at a sample interrogation starting on page 9 is particularly chilling.

"No torture here"

On May 10, 2005, Justice Department attorney Steven Bradbury concluded in a pair of memos that the use of each of the methods described in the CIA's backgrounder – including waterboarding– did not violate the law against torture when used individually or in combination. He followed that up on May 30, 2005, with a legal opinion concluding that the CIA's program also did not violate the prohibition on cruel, inhuman or degrading treatment or punishment.

The ICRC obtains access to detainees

On September 6, 2006, the Bush administration announced that 14 so-called "high-value" detainees had been transferred from CIA detention to Guantánamo Bay. That was the first public acknowledgment that the CIA's secret detention program existed.

In October 2006, the International Committee of the Red Cross obtained access to the men for the first time. The ICRC's confidential report to the CIA was leaked and published by the New York Review of Books in 2009. The report contains detailed descriptions of abuses meted out by the CIA and concludes that the interrogation techniques and treatment the men were subjected to "singly or in combination . . . amounted to torture and/or cruel, inhuman or degrading treatment."

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A Tale of Two Immigrant Detainees

December 8th, 2014 No Comments   Posted in ACLU Nationwide
By Sophia Yapalater, ACLU Immigrants' Rights Project

In many ways, Mark and Richard led parallel lives. Both men came to the United States as young children, Mark from South Korea and Richard from Jamaica. They both had status as legal permanent residents, attended school, and put down roots in their communities.

In their teenage years, both had minor run-ins with the law, as many teenagers do. Mark was convicted for marijuana possession, while Richard received a conviction related to a schoolyard fight at his high school. But both committed to reform, and they remained out of trouble since that time.

As adults, both were living comfortably. They had stable jobs – Mark ran a logistics and shipping company, while Richard was a Class-A truck driver – and were excitedly expecting children with their partners. Neither man had any inclination that incidents from their youth would have any effect on their immigration status. But, some 15 years later, both men were apprehended in their own homes by Immigration and Customs Enforcement (ICE) without warning, charged as deportable based on these minor convictions, and incarcerated in an immigration detention center.

In general, our Constitution does not allow the government to lock people up unless, at a minimum, they are provided with a bond hearing to determine that their detention is necessary. However, in 1996, Congress passed a law requiring the mandatory detention of immigrants facing removal proceedings who had been convicted of virtually any crime. As a result, individuals like Mark and Richard found themselves locked up in immigration jails, without even an opportunity to demonstrate that they posed no danger or flight risk requiring their detention. Moreover, such detention can last for months, even years, depending on how long it takes for an immigration case to be decided.

Most people who are detained do not have attorneys, and have no idea when, or if, they will be released. One can only imagine what type of toll this uncertainty might take on someone's psyche. When I spoke to Mark, he told me that he felt so stuck that he almost signed voluntary deportation papers just to know that he was getting out, despite the fact that he had strong legal claims to remain in the United States and would be forced to return to a country he barely knew.

However, Mark was lucky to have been living in California. He was able to secure his release on bond after being detained for just six months, while Richard was locked up in immigration detention for over two years without a bond hearing.

Given their almost identical circumstances, it doesn't make sense that Mark and Richard had such starkly different detention experiences. Why would a person be detained for over two years without any opportunity for a bond hearing, missing the first two years of his child's life, while others are afforded this basic right? The answer lies in several important ACLU court victories that have helped restore some due process to the immigration detention system.

Most recently, in 2013, the Ninth Circuit Court of Appeals held in the ACLU class action Rodriguez v. Robbins that the government is required to provide bond hearings for certain detainees held for six months or longer. The implementation of the Rodriguez decision has proven the government can no longer justify its mandatory detention regime. For Mark, detained in Adelanto, California, this meant that an immigration judge was required to review his case before he was held any longer than six months. He was then released on bond back to his waiting family.

A report compiling government statistics reveals that of the hundreds of bond hearings conducted for Rodriguez class members, immigration judges have found that approximately 70 percent are eligible for release on bond. That number is astounding. The government claims that no detainee should even have the opportunity for a bond hearing, and yet when the government's own immigration judges are taking a look at the individual cases, they are finding that 70 percent can be released on bond.

Because the government continues its draconian policy of mandatory detention in states outside of the Ninth Circuit, thousands of immigrants like Richard, who was apprehended in Connecticut and detained in Massachusetts, continue to waste away unnecessarily behind bars – at great cost to them, their families, and the U.S. tax payer because of nothing more than judicial geography. The government continues to deny these people the most basic right that due process guarantees: a hearing before an immigration judge where the government must justify the need to detain them.

This is true regardless of how long they are detained, or whether they present any risk to the community. The system is unfair and unconstitutional, and it is incredibly expensive. There is no reason that the basic right to a bond hearing should turn on the happenstance of where you are detained. The Obama administration should help bring a measure of fairness to our broken detention system by adopting the Rodriguez six-month rule nationwide.

The statistics in the report simply confirm what we already knew from cases like Mark and Richard's – it's time to put an end to prolonged mandatory detention.

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Pregnant? Avoid Alcohol, Caffeine, and Catholic Hospitals

December 5th, 2014 No Comments   Posted in ACLU Nationwide
By Brigitte Amiri, ACLU Reproductive Freedom Project

Regardless of whether you have been pregnant or not, chances are you can recite the long list of things to avoid in pregnancy: alcohol, caffeine, cigarettes, deli meats, unpasteurized cheese, and the list go on.

But one thing that isn't in the baby books that should join that list: Catholic hospitals. Why? Because across the country, Catholic hospitals are denying pregnant women care that is necessary to protect their health. By definition, a Catholic hospital must follow rules set by the Catholic bishops. These rules forbid the hospital from providing some reproductive health care, even when a patient's health or life is at risk.

Case in point: Tamesha Means.

When Tamesha's water broke at 18 weeks, long before her pregnancy was viable, she rushed to a Catholic hospital. Because of religiously based rules, the hospital told Tamesha it could do nothing for her, and didn't tell Tamesha that terminating her pregnancy was the safest course for her. The hospital sent her home twice in excruciating pain. When she returned the third time, in extreme distress and with an infection, the hospital only began to care for her once she began to miscarry. We have filed a lawsuit against the Catholic bishops for setting hospital policy that allows religion to trump women's health.

And yesterday we urged the state of Michigan to investigate another situation where a Catholic hospital is putting women at risk by abruptly refusing to provide tubal sterilization to women undergoing a C-section. A C-section is the best time to get your tubes tied, and women who are denied a tubal sterilization at this hospital will now have to undergo a separate procedure, carrying additional risks, after they heal from childbirth. But this Michigan hospital isn't the only one that refuses to provide tubal sterilization during a C-section – all Catholic hospitals do, even though it is bad medicine.

Pregnancy can be a scary time: all of those ultrasounds, blood tests, urine tests - always holding your breath for a good result. You're constantly worried about your health, and the health of your future baby. If something does go horribly awry, the last thing you should have to worry about is whether you are going to get appropriate care because of the hospital's religious beliefs.

I was lucky that my pregnancy ultimately went fairly smoothly. But you don't know that it will. So in addition to avoiding all those other things – alcohol, caffeine, etc. – I made sure to tell all my friends and family that if anything happened to me, make sure that I did not get taken to a Catholic hospital for care. But that can't be the answer – in some areas of the country the Catholic hospital is the only option.

If you've received substandard care at a Catholic hospital, we'd love to hear from you. We need to make sure that all hospitals, regardless of their affiliation, provide the best care to women. We all deserve that much.

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Believing Our Lying Eyes

December 4th, 2014 No Comments   Posted in ACLU Nationwide
By Dennis Parker, Director, ACLU Racial Justice Program

We cannot allow Eric Garner's sadly prophetic words, "It stops today," to refer only to his life.

Perhaps the most surprising thing about yesterday's announcement from the Staten Island grand jury is our own surprise at the outcome.

After years of hearing of the killing of unarmed black men by police officers with no accountability and no widespread acknowledgement beyond particular communities that a problem even exists, the news that there would be no criminal liability for the death of a man at the hands of a phalanx of police officers in the course of an "investigation" into the sale of loose cigarettes is just the latest installment in a sad, unending serial about the improper use of force by law enforcement against people of color.

But this time seemed different because of the existence of a videotape that clearly showed the grotesque use of what turned out to be deadly force by a group of police officers the size of which would have been appropriate for the investigation of a serious, deadly offense rather than the most minor of nuisances. Surely, in the face of the shocking video, no grand jury could decline to initiate a criminal proceeding during which all of the facts could be explored and presented in a public proceeding with all of the due process protections which attach to those proceedings.

But those hopes turned out to be unrealistic. When the results were announced, I found myself thinking, improbably, of an old Richard Pryor comedy routine in which a man, caught in bed with his girlfriend by his wife, argues his innocence of clear infidelity by asking, "Who are you going to believe, me? Or your lying eyes?"

This time the clear testimony of what was seen and recorded, along with the truth itself, lost out. We are all left wondering what will have to happen before there is accountability and an honest recognition of the enormous problem we face as a country, as the bitter taste of despair fills our mouths.

Out of the depths of this despair, there comes some hope that there may be the chance of some progress notwithstanding the long history of police violence and discrimination against communities of color. Increasingly, there is some indication of the collective sense of alarm and recognition of the need to discuss that is necessary before there can be any meaningful change. The white mayor of New York City has painfully acknowledged his fear for the safety of his own black son at the hands of his own police department. Protestors of all races have risen up in greater numbers to speak up for accountability and change. And, increasingly, there are discussions of things too long denied by too many: that there are, in fact, two systems of law enforcement in this country.

In a recent interview on WNYC, New York City's public radio station, a Brooklyn man scoffed at the notion that he should fear police while carrying marijuana, observing that they would never stop him because he is white. The twitter hashtag #CrimingWhileWhite documents story after story like this of whites who suffered no criminal consequences after engaging in behavior far worse than selling loose cigarettes. It is past time that we admit what so many have known for too long: That all too often, our justice system simply is not just.

On the videotape of his killing, Mr. Garner is heard explaining that he did nothing wrong and that he was tired of the daily harassment and abuse to which he was subjected. We cannot allow his sadly prophetic next words, "It stops today," to refer only to his life. We owe it to him and to ourselves as a nation of laws to make sure that the day of his death is also the beginning of the end of the unlawful and discriminatory use of force by police all over the county.

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Aquellos que Obama dejó olvidados – y deportó sin una oportunidad de ser escuchados

December 4th, 2014 No Comments   Posted in ACLU Nationwide
By Sarah Mehta, Researcher, ACLU Human Rights Program

Nydia ya tenía asilo en los Estados Unidos cuando fue deportada dos veces por agentes fronterizos de nuevo al peligro del cual ella huyó. Nydia, una mujer transgénero de México, dijo a los oficiales que ella tenía estatus y que había sido violada y atacada en México cuando regresó para el funeral de su madre.

Ellos la deportaron de todos modos, y ella fue secuestrada y violada de nuevo.

Cada año, más de 363.279 - 83 por ciento – de las deportaciones --desde los Estados Unidos son ordenadas por oficiales de inmigración, no por jueces. Los deportados en procesos de "expulsión sumaria" no obtienen una audiencia o la oportunidad de presentar pruebas, o llamar a un abogado, o incluso decir adiós a sus familias antes de ser expulsados, a veces de por vida. Nuestro informe publicado hoy, "Exilio estadounidense: deportaciones rápidas que pasan por alto la Sala de Justicia", muestra los increíbles costos a aquellos que expulsamos y a sus familiares que quedan, cuando la prisa por deportar le gana al debido proceso.

Hace dos semanas, el presidente Obama anunció un plan que tiene el potencial de proteger a más de cuatro millones de personas no ciudadanas con vidas enraizadas en los Estados Unidos sin el reconocimiento legal. Al anunciar su Acción Ejecutiva, el Presidente Obama ayudó a millones de residentes indocumentados que se lo merecen, pero no logró reformar el trato hacia las personas atrapadas en nuestra frontera. Nuestra frontera no es una línea, sino, tal como lo indica el Departamento de Seguridad Nacional, un anillo de 100 millas en los Estados Unidos. Y sin embargo este espacio es manejado de manera completamente diferente, incluso para las personas con los mismos valores de renta variable que los aprehendidos en el llamado "interior".

Tal como determinamos tras una investigación de un año de duración y cerca de 200 entrevistas y estudios de casos, muchas personas detenidas y deportadas en la zona fronteriza no son unas extrañas: entre ellas se encuentran personas residentes desde hace mucho tiempo y padres de ciudadanos estadounidenses. Otras son residentes o trabajadores legales, deportadas durante su ruta diaria al trabajo cuando los oficiales de inmigración federales extinguen sumariamente sus derechos. Y luego están los niños y las familias que huyen de la violencia insondable y que buscan protección en los Estados Unidos. Deportar a estas personas sin un juicio justo y a veces con catastróficas – y hasta predecibles -consecuencias viola nuestras obligaciones de derechos humanos y es opuesto a lo que queremos ser como país.

Al anunciar su programa de Acción Ejecutiva, el Presidente Obama dijo: "Nosotros no instalamos la Estatua de la Libertad de espaldas al mundo; lo hicimos con su luz brillando como un faro hacia el mundo". Pero cuando los solicitantes de asilo llegan a nuestras fronteras siguiendo ese faro, ellos y muchos otros son deportados rápidamente hacia el peligro, sin una audiencia, a menudo después de firmar formularios de deportación que no entienden y en un idioma que no hablan.

En todas estas situaciones, las personas son deportadas porque los funcionarios encargados de hacer cumplir las leyes de inmigración tienen un poder increíble y una discreción que se utiliza muy a menudo como una cortina de humo para negar a una persona sus derechos. Los agentes de inmigración no están entrenados como abogados; ni actúan como mediadores independientes. Ellos están capacitados para arrestar, detener y deportar -no para juzgar y autorizar alivio o para ser fluidos en algunas de las leyes más complicadas en los Estados Unidos.

Sin embargo, estas órdenes de deportación, que uno pensaría necesitan más análisis y supervisión, reciben casi nada - mucho menos que una orden de deportación emitida por un juez después de pruebas, testimonios y revisión legal. Lograr que se revisen y eliminen órdenes de deportación ilegales es prácticamente imposible. Y la revisión puede ser muy poca, demasiado tarde, cuando las personas son deportadas de nuevo hacia el peligro.

Individuos como Nydia que ya tienen derechos en los Estados Unidos deben confiar en que los oficiales fronterizos van a creerles, escucharles y preocuparse por sus derechos y quejas. Algunos funcionarios de la patrulla fronteriza hacen bien su trabajo, pero una proporción significativa está actuando - intencionalmente o no – de forma contraria a las leyes estadounidenses que protegen a las familias estadounidenses y a los refugiados. Dar a las personas una oportunidad real para defender sus derechos y presentar quejas ante el tribunal restauraría cierta integridad de nuestro fallido sistema de inmigración, poniendo la justicia primero – y no la conveniencia.


A Win for Transgender Students You May Have Missed

December 4th, 2014 No Comments   Posted in ACLU Nationwide
By Ian S. Thompson, ACLU Washington Legislative Office

This piece originally appeared in Slate on Dec. 3, 2014.

On Monday, the Department of Education released a long-awaited, much-needed guidance for elementary and secondary schools that offer or want to offer single-sex classes.

Included within the guidance was an important protection for transgender students that should not be overlooked. The guidance makes clear that transgender students must be allowed to participate in single-sex classes consistent with their gender identity (in other words, consistent with who they are). This latest positive breakthrough builds on guidance released earlier this year that made it explicitly clear, for the first time, that Title IX extends to claims of discrimination based on gender identity.

The need for this latest guidance could not have been clearer.

As the ACLU has repeatedly documented, and fought, far too many single-sex programs are based on discredited "science" that is rooted in outdated and harmful gender stereotypes. For example, teachers have been instructed that girls should not have time limits on tests because, unlike boys, girls' brains cannot function well under these conditions. On the flip side, teachers have been told to firmly discipline boys who like to read by requiring them to spend time with "normal males" and to play sports.

These kinds of sweeping generalizations are especially harmful to students who do not conform to rigid gender stereotypes, including LGBT students. Indeed, such generalizations and stereotypes are precisely the sort of discrimination that Title IX was intended to eliminate more than four decades ago, and they should have no place in our public education system today. The guidance released on Monday makes clear that schools cannot rely on these kinds of harmful stereotypes.

These recent actions from the Department of Education are important steps forward, but there is still more to do. The Department of Education should release comprehensive guidance for schools nationwide explaining how Title IX protects transgender and gender nonconforming students from discrimination and what steps schools need to take to be in compliance with the law and meet their obligations to these students.

All students deserve the opportunity to attend school free from discrimination because of who they are, including stereotypes about how "normal" boys and girls learn.

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Treating School Kids Differently Based on Sex = Discrimination

December 4th, 2014 No Comments   Posted in ACLU Nationwide
By Galen Sherwin, ACLU Women's Rights Project

It should be a foregone conclusion that treating boys and girls differently in school is sex discrimination. Except in many schools across the country that isn't the case. Hopefully that's about to change.

A guidance document issued Monday by the Department of Education makes clear that single-sex education programs based on sex stereotypes are unlawful, as is the practice of employing different teaching methods for boys and girls. Specifically, the department clarified that the justification for sex separation of students "may ‘not rely on overbroad generalizations about the different talents, capacities, or preferences of' either sex," and emphasized that "likewise, the evidence cited in the justification may not rely on these overly broad generalizations."

This is critical because almost all of the educational programs that the ACLU reviewed as part of its "Teach Kids, Not Stereotypes" campaign, which investigated the use of single-sex classrooms in public schools across the country, relied on precisely such generalizations. Indeed, the presumption that boys and girls are "hard wired" to learn differently was incorporated into every aspect of these programs' structure, from curricula to teaching methods to classroom activities and décor.

If you are wondering what this looks like on the ground, here are some examples of what our investigation found.

In the Hillsborough School District in Florida, all kindergarten teachers in single-sex classrooms were required to attend a training entitled "Busy Boys, Little Ladies." The school district encouraged teachers in boys' classrooms to "be louder" and "have high expectations," while teachers in girls' classrooms were expected to be "calmer" and "less critical." In one instance, boys had an electronics day, where they could bring in all their electronics and play them if they behaved, while girls did not. In another, the teacher in a girls' classroom gave each girl a dab of perfume on her wrist for doing a task correctly.

In Middleton School District in Idaho, boys were seated shoulder-to-shoulder while girls were seated face-to-face on the theory that girls are more cooperative while boys are more competitive and should not be forced to make eye contact. The program called for "large amounts of explanation for assignments" for girls and "limited teacher explanation" for boys. Boys were permitted to play and exercise while girls were required to maintain a "quiet environment."

And a personal favorite of mine: Teacher training materials used widely across the state of Florida, including in Broward, Hernando and Volusia counties, advised teachers to "reassure" young female students struggling with math that "when her brain is ready she'll be ready."

These examples show the harms of making crude judgments about what is best for kids based on their sex. No one denies that there are biological differences between boys and girls. But these have simply never been shown to translate into a need to teach boys and girls differently. And we all know kids who don't conform to sex stereotypes – including, of course, transgender students.

The Department's clarification should establish once and for all that programs based on this model violate Title IX. It also contains other important safeguards, including requiring schools to justify each single-sex classroom separately by grade and subject (rather than implementing sex segregation across an entire grade or school), clarifying that affirmative consent is required for participation, establishing that transgender students and students with disabilities must be given equal opportunities to participate in single-sex classes (including by honoring students' individualized educational plans and ensuring that students are permitted to participate in the class that conforms to their gender identity), and emphasizing the programs must be evaluated to ensure that they are meeting their objectives and not perpetuating sex stereotypes.

We look forward to disseminating the Education Department's guidance widely to educators and policy makers. Hopefully it will provide a much needed course-correction and help put a stop to this costly, misguided, and discriminatory experiment with our kids.

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