By Amy L. Katz, ACLU Women's Rights Project
Sometimes all it takes is a letter and an hour to do the right thing.
After the ACLU learned late last week about a plan to assign ninth-grade students at Lawrence Free State High School in Kansas to different classrooms based on their sex, we emailed a letter to the school district's superintendent on Monday explaining our concerns about what seemed to be obviously unlawful sex separation. According to a report in the school paper, the principal initiated this program – without notifying parents – because he believed that girls and boys have different learning needs and different reading preferences. Within an hour of receiving our letter, the superintendent shut down the program.
So what changed? School administrators are getting the memo.
Last month, the Department of Education's Office of Civil Rights released a guidance document we have long-requested clarifying the meaning of its regulations that allow schools to establish single-sex classrooms in limited circumstances. Some of the requirements in the guidance document specifically applicable to Lawrence are:
- Participation in any single-sex class must be completely voluntary, and unpressured, prior affirmative consent to participation is necessary.
- A substantially equal coeducational class must be offered. If even one student chooses a coeducational class, a full coeducational class must be established. There is a right to a coeducational class, but no right to a single-sex class.
- Even if all participants consent, any single-sex class must be justified based on high quality evidence. The justification must have been established prior to offering the single-sex class and not after the fact. And perhaps most importantly, it may not rely on overbroad generalizations about the talents, capacities, or preferences of males and females.
That last requirement is a tough one to satisfy. A meta-analysis of more than 1.6 million students' performance published in 2014 by the American Psychological Association showed that, when proper controls are used, there are no benefits to single-sex education.
And the Supreme Court has held that generalizations about a "typical" woman (or man) are not constitutionally adequate to justify a sex-segregated program. That's because programs based on such generalizations, like the one in Lawrence, violate students' rights to be treated as individuals and not pre-judged based on their sex.
The assumptions that fuel such programs, however, are far too common. Proponents of single-sex education have argued that boys and girls brains are wired differently, and that they consequently need to be taught in radically different ways—or even given different curricula.
For example, in one school district in Louisiana, the boys were assigned "Where the Red Fern Grows" and the girls were assigned "The Witch of Blackbird Pond" because, as a teacher explained to the ACLU in a deposition, boys like hunting and dogs and girls like love stories. (So much for the girl who, like me, prefers science fiction and history to love stories.)
Often, as in Louisiana and Lawrence, these programs are established without parents' consent. But persuading school administrators that creating a single-sex class requires the clearing of numerous difficult hurdles has in the past been difficult, and it all too often required litigation or the filing of complaints with the OCR.
Thankfully, the Department of Education's new guidance has made it much easier for schools to understand what is – and what is not – permitted. In Lawrence, this means that the students in English 9 can go back to discussing literature in a coeducational environment, rather than one in which the perspectives of 50 percent of the population are intentionally omitted. The girl who prefers science-fiction – or, for that matter, the boy who enjoys reading about characters' relationships – will no longer have their educational needs ignored because of stereotyped assumptions about their interests or preferences.
While it would have been better if the Lawrence Free State High School administration had figured this out before the sex separation was put in place, they were a quick study once we pointed out the problems—A+.
By Cassandra Stubbs, Director, ACLU Capital Punishment Project & Anna Arceneaux, Staff Attorney, ACLU Capital Punishment Project
The logical response to Clayton Lockett's bloody, pain-filled, unconstitutional execution in Oklahoma eight months ago would be to prevent such torture from happening again. But Oklahoma has another idea for its first execution since Lockett's. Instead of learning from its mistakes, the state will administer midazolam, the same drug used in Lockett's horribly botched execution.
Barring intervention from the courts or the governor, Oklahoma will execute Charles Warner tonight. The state will give Warner midazolam as if it worked for Lockett, as if it had produced the state of "deep unconsciousness" the U.S. Supreme Court has recognized as a vital step before the other, excruciatingly painful drugs in the lethal protocol. But the medical use of midazolam is to relieve anxiety, not put people to sleep. Midazolam has failed not only in Oklahoma but also in Ohio, Arizona, and Florida. With that track record, midazolam should be retired from lethal injection, everywhere, forever. Indeed, Ohio has wised up and dropped the drug from its protocols. But Oklahoma persists, playing torture roulette tonight with Warner, who originally had been scheduled to be executed right after/the same night as Lockett.
Though midazolam is a relatively new drug in the lethal injection scene, it quickly earned a troubling reputation. Florida was the first to experiment with midazolam, in the execution of William Happ, despite warnings that the drug would not work. Even after he was ruled unconscious, he moved his head back and forth, suggesting that he was in fact conscious for the administration of the extremely painful drugs that followed.
After receiving a drug combination that included midazolam, Dennis McGuire in Ohio took over 20 minutes to die. He moved, clenched his fist, and gasped.
Joseph Wood in Arizona was given an extraordinary amount of midazolam in that state's experimental two-drug protocol—15 doses—yet his execution lasted for more than two hours. He gulped and gasped hundreds of time for air.
Not only will Oklahoma use midazolam again, it will then administer vecuronium bromide, a drug meant to paralyze Warner. This will make it impossible to know if he is experiencing pain when the final lethal drug is administered.
In Mr. Warner's case and others, legal challenges to the states' unregulated experimentation have largely fallen on deaf ears, despite botch after botch. Earlier this week, the 10th Circuit denied Warner's request to stop his execution, and his case now moves to the U.S. Supreme Court.
Enough is enough. In the seven years since the U.S. Supreme Court upheld the constitutionality of a lethal injection drug protocol in Baze v. Rees, states' protocols have completely changed. In response to pharmaceutical companies electing to make their products unavailable for use in executions, states have turned to untested, novel drug combinations. No state, in fact, still uses the protocol in Baze, which the court approved largely on the assurance that the prisoner would be unconscious before the lethal drugs were administered and would therefore not experience the severe pain they're known to cause. Given the recent problems with midazolam, we have every reason to doubt that Warner will be unconscious. Under these troubling conditions, Warner's execution carries a substantial risk of harm.
We can only hope that the U.S. Supreme Court is listening and will stop Warner's execution until Oklahoma can prove conclusively that its lethal injection protocol meets constitutional standards. It's time for the human experimentation to end.
By Gabe Rottman, Legislative Counsel, ACLU Washington Legislative Office
Are our work emails, our medical records, and our financial information safe online? Or have we been leaving our digital doors unlocked?
Given the high-profile cybersecurity failures in recent weeks, from the Sony hacks to the brief takeover of the U.S. Central Command twitter feed, these questions are being asked with a new intensity.
On Tuesday, the president will give his annual State of the Union address, and we already know that cybersecurity will be getting some serious attention during the speech. Indeed, the president has already unveiled proposals aimed at enhancing online privacy and cybersecurity, including allowing private companies greater leeway to share sensitive personal information that they believe is connected to a cyber-threat with the government.
While it is clear that more can and should be done to keep our digital world secure, not all solutions are created equal. So how do the president's proposals stack up?
The president's consumer privacy proposals – a federal data breach notification law and expanded protections for student information – are steps in the right direction, though the notification law must not be allowed to override more protective state laws. And the information sharing proposal, though better than alternative suggestions out there, fails to include clear privacy guidelines to keep sensitive personal information from flowing to the NSA and other intelligence agencies.
Before we give the government more power to collect our private information, we must deal with the suspicionless surveillance revealed by Edward Snowden. We also ought to focus on common sense security measures, including educating users on cyber-hygiene and encouraging companies to adopt basic security best practices, like two-factor authentication and encryption, to prevent hacks. This would be more effective, and less invasive, than expanding surveillance authorities or creating exemptions to existing privacy law.
The president's information sharing proposal is better than bills like CISPA or the Feinstein-Chambliss Senate package last year, which would have allowed the government to collect communications content in the name of cybersecurity and then use that to investigate whistleblowers. It's still unnecessary, however, and could potentially raise serious privacy concerns.
Moreover, federal regulation should set minimum standards for data protection but allow states to enact stricter standards if they so choose. In other words, federal standards should be the floor, not the ceiling. Yet the president's data breach proposal would preempt stronger state notification laws, which would actually weaken the notification requirements across the country.
The administration deserves some credit for being more privacy protective than members of Congress, like the proponents of CISPA, who just want to open the floodgates to information sharing with intelligence agencies and the military while conferring broad legal immunity for private companies. But we remain skeptical that these measures are necessary or wise, and we continue to strongly urge the administration to deal with NSA reform before further weakening American privacy laws in the name of cybersecurity.
By Carl Takei, ACLU National Prison Project
The CIA's chief interrogator called it "the closest thing he has seen to a dungeon."
At the agency's COBALT detention site in Afghanistan – also known as the "Salt Pit" – detainees were kept in total darkness, shackled to the floors or walls of their cells, and given buckets to dispose of their own waste. One senior interrogator later told the CIA's inspector general that a detainee "could go for days or weeks without anyone looking at him." Studies have concluded that such isolation has profound psychological impacts. It's no surprise the interrogator said detainees "cowered" whenever their cell doors were opened. Even though the Salt Pit was closed in 2004, the horrors that took place there stand as examples of the CIA program's inhumanity.
In a little-noticed section of the executive summary of the Senate torture report released in December, Senate investigators described how the Federal Bureau of Prisons, which runs the federal prison system, gave a green light to this dungeon.
In November 2002, just a few months after it opened, the CIA invited a BOP inspection team to assess the facility. During one of the multiple days of the BOP's inspection, a CIA officer ordered that detainee Gul Rahman be partially stripped, then shackled overnight to the concrete floor of his cell. Left naked except for a sweatshirt, Rahman died of apparent hypothermia at the end of the BOP's visit, though it is unclear whether anyone from the team actually saw him. After the inspection, the BOP team commented that they were "WOW'ed" and had "never been in a facility where individuals are so sensory deprived."
Despite seeing the conditions that led to Rahman's death, BOP apparently never urged the CIA to make the Salt Pit less like a medieval torture chamber. Instead, the BOP inspectors gave the prison their blessing, concluding that "the detainees were not being treated in humanely [sic]" and the "staff did not mistreat the detainee[s]." In the years that followed, more than half of the 119 victims of the CIA's Detention and Interrogation Program who were named in the Senate torture report spent time in the Salt Pit.
The BOP's rubber-stamping of the Salt Pit is perhaps the most shocking example of how a domestic prison agency helped foster U.S. torture abroad. But it is hardly the only one.
From solitary confinement to sexual abuse, the routine inhumanity of U.S. prisons can enable and normalize the use of torture abroad. Indeed, Charles Graner, ringleader of the Abu Ghraib scandal in Iraq, worked as a prison guard in Pennsylvania before joining his now-infamous Army Reserve unit. According to a 2004 Washington Post profile of Graner, the prison where he worked was rife with accusations that other guards engaged in brutal abuse: beating prisoners, spitting in their food, using racial epithets, and using one beaten prisoner's blood to write the letters "KKK." It was here, just south of Pittsburgh, where Graner first lost his moral compass. By the time he shipped out to Abu Ghraib, Graner was so entrenched in these daily realities that he reportedly whistled, laughed, and sang while abusing those in his custody.
Some international human rights bodies see the connection. In a recent review of U.S. compliance with the Convention Against Torture, for example, the United Nations simultaneously condemned both the U.S.'s failure to hold anyone responsible for CIA torture and the widespread use of solitary confinement in U.S. prisons.
Today the ACLU is submitting a Freedom of Information Act request to BOP to find out more about the agency's 2002 inspection of the Salt Pit. In the meantime, BOP officials – perhaps some of the same ones who signed off on the Salt Pit – march on with their own plans for a massive new prison that thumbs its nose at the U.N.'s Convention Against Torture report. The next federal prison to open will be ADX/USP Thomson in Northwestern, Illinois: A 1,600-cell Supermax prison devoted entirely to solitary confinement.
The resulting inhumanity will be all too predictable, even if BOP officials choose not to see it.
By Peter Bibring, Director of Police Practices for the ACLU of Southern California & Jay Stanley, Senior Policy Analyst, ACLU Speech, Privacy & Technology Project
A police officer wearing a body camera shoots a civilian. Afterwards, the officer has to write up a report about the incident. Should the officer be able to view the footage captured by his body camera (or other cameras) before he writes his initial report?
To us, the answer seems entirely clear: of course not. Some departments agree—for example, when the Los Angeles Sheriff’s Department recently installed video cameras in its jails, the department, after careful consideration, adopted a policy that requires deputies in the jails to file reports on incidents before viewing video, for many of the reasons we articulate below. But surprisingly, this has become an increasingly common policy question as first dashcams, and now police body cameras, are deployed around the country. One prominent law enforcement group has even recommended that officers involved in an incident recorded on body cameras be allowed to view the videos before giving a statement about the incident.
The main argument that supporters of this policy give is simply that “we want police to give the most accurate possible statement, so why not let them view the video?” This argument may sound appealing at first blush, but if you scratch below the surface, permitting officers to view video before they make their initial report of an incident hurts accountability and accuracy far more than it helps.
It is a poor investigative practice. An officer who is involved in a shooting is under investigation, not only to see if the shooting is consistent with policy but potentially for criminal charges. Any detective would be the first to say that it’s hardly a solid investigative practice to let the subject of an investigation view the video evidence you have over and over before you even ask them what happened.
Police departments don’t believe their own arguments. If they did, they’d show all the video evidence they have to the suspects in every crime they investigate. They don’t do that. In fact, one LAPD commander recently explained why LAPD often withholds autopsies in police shootings from the public for a period of time:
“We don’t want the witnesses’ testimony to be tainted,” Smith said. Detectives want to obtain “clean interviews” from people, rather than a repetition of what they may have seen in media reports about [the subject’s] death, he added. “They could use information from the autopsy to give credibility to their story,” Smith said.
It enables lying. If an officer is inclined to lie or distort the truth to justify a shooting, showing an officer the video evidence before taking his or her statement allows the officer to lie more effectively, and in ways that the video evidence won’t contradict. Video evidence can be enormously helpful, but it doesn’t capture everything from every angle. If an officer isn’t sure what was and was not captured by the camera, he or she will feel a healthy pressure to tell “the whole truth and nothing but the truth” in describing an incident out of a desire not to be later revealed as a liar by the video. But if the officer watches the video and discovers that certain elements that put them in a poor light happened not to have been captured—or that there’s a moment when the subject wasn’t in frame that the officer can say he reached for his waistband—then the officer will feel at liberty to shade and color their account of events, if not to lie outright.
It undermines the legitimacy of investigations. Because letting officers preview videos of an incident before giving a statement can allow them to lie, doing so undermines the credibility of officer statements and the integrity of investigations whether the officers actually lie or not. Such a policy will create an appearance of bias and therefore taint the integrity of investigations. After all, departments aren’t proposing to show video evidence to the subjects of uses of force or to civilian witnesses; that’s a special privilege they’re proposing to give only to officers.
It enables cross-contamination of evidence and impedes the search for truth. Even for officers who are trying to tell the truth (as we hope most do), showing them the video can easily influence their memory of events. A camera worn on a police officer’s body may capture some things an officer didn’t see and miss things an officer did see. That video provides one important piece of evidence on whether the officer acted reasonably. But the officer’s memory of what took place is also important evidence—especially since courts evaluate the legality of an officer’s use of force based on what he or she knew at the time, not on information gleaned from poring over video evidence later. Memory is highly malleable, and an officer’s initial recollections of what took place are likely to be altered by viewing the video, so that details that don’t appear on video are forgotten and things captured by the video are recalled as if experienced firsthand. As the Los Angeles County Office of Independent Review found in working on the Sheriff’s Office policy:
In our review of the available research, we found ample evidence that seeing additional information than what was experienced (such as seeing the action from a different angle) can alter the memory of an event.
Furthermore, if officers set down their memories before they are contaminated by viewing the video, they may capture important elements of the truth that a video has missed. An officer’s firsthand uncontaminated account could actually lead to a closer interrogation of the video and reveal ways that the video may be misleading. That’s important. Investigations shouldn’t spoil evidence of the officer’s initial recollections by showing the officer other evidence.
Proponents of showing officers videos (such as PERF in its body camera report, pages 29–30, 45–47, 62) agree that research shows that in stressful situations like shootings, even trained observers may have trouble to recalling events accurately. But they argue that since video is often the most accurate record of what occurred, letting officers review footage will help lead to the truth of the incident by helping officers to remember an incident more clearly. But none of those reasons justifies giving officers access to video before they’ve given an initial statement. Of course officers should be allowed to watch the video after giving an initial statement and offer additional information if it jogs their memory of something they left out or misremembered, or provide context if it shows something they missed entirely. That would help provide the fullest picture of what happened, including the officer’s commentary on the video evidence, without tainting the officer’s initial recollection or giving them a roadmap to lie without getting caught.
Most police aren’t upfront about their real concern: because memories are fallible, particularly in stressful events, officers’ initial accounts almost certainly aren’t going to match the videos exactly. Officers don’t want to be disciplined because they misremembered some details such as which hand a subject used to reach for a door or wallet, or even important facts like how many shots they fired.
That concern has some validity. Officers in a stressful incident like a shooting shouldn’t be disciplined for giving testimony that contradicts a video absent evidence that they intentionally misstated the facts. And yes, video evidence may force police, prosecutors, juries and the public to confront our misplaced belief in the reliability of eyewitness accounts. But every other subject of an investigation has to deal with those realities; police should not get special treatment in that regard.
The right answer is to confront that belief and change our perceptions, not to fabricate a false level of accuracy by letting officers tailor their accounts to video. To do so risks turning police body cameras from tools for police accountability into tools for police coverup.
We’ve learned that another major police department, Oakland, CA, has a policy prohibiting officers from reviewing video prior to making a statement in an investigation arising out of a Level 1 use of force (the most serious, including shootings). Oakland has had its share of controversies over the use of force, and has had body cameras since 2010, longer than most other departments in the United States.
Being transgender can be a lifelong battle against erasure.
We are erased by families who tell us we cannot be who we are; erased by governments who prevent us from obtaining identification that affirms our names, genders, and existence; and erased by health care systems that withhold treatment that we need to survive.
This erasure leads to catastrophic health outcomes for trans people, particularly trans people of color. The numbers are staggering: 41 percent of trans people have attempted suicide at some point in their lives. Trans women are 49 times more likely to be living with HIV than the general population. LGBT young people make up 40 percent of all homeless youth. And the numbers go on, reflecting a devastating cycle of rejection, poverty, homelessness, incarceration, and, all-too-often, death.
The death of transgender teenager Leelah Alcorn by suicide last month brought into focus the critical need to give voice and visibility to the trans community. Before ending her life, Leelah published a suicide note in which she reflected that, "The life I would've lived isn't worth living in… because I'm transgender."
Leelah ended her life at 17 because she could not imagine being a transgender adult in this world.
So last night, when the Amazon series Transparent won the Golden Globe award for best comedy series, it was a big deal. It was a big deal when series creator Jill Soloway accepted the award and said to the world: "They are our family. They make this possible. This award is dedicated to the memory of Leelah Alcorn, and too many trans people who die too young."
The very fact that the word "transgender" was used at the Golden Globes without mocking the existence of trans people matters. It matters that Jeffrey Tambor – who won the best actor category for his role as transgender woman, Maura Pfefferman – dedicated his award to the transgender community and thanked Soloway for giving him the "gift" and the "responsibility" of Maura.
It matters and it also isn't enough. With the notable exception of the legendary Alexandra Billings, there were no people of color there representing the trans community and no trans women receiving acting awards for playing trans roles.
Telling public and visible trans narratives comes with a responsibility to center the resilient trans people and communities who are fighting to be themselves in life and in death. It means honoring Leelah Alcorn and Islan Nettles. It means recognizing that real trans parents are fighting uphill court battles to retain connections with their children. It means thanking the trans people who made Transparent possible, like Janet Mock, Laverne Cox, and Miss Major.
Visibility, as Jeffrey Tambor poignantly noted, is both a gift and a responsibility. It truly is time, as Leelah Alcorn urged, to "fix society."
I was 23 years old when I crossed the U.S.-Mexico border with my husband, aunt, and cousin.
Before we came to the United States, we lived in a community in Veracruz. My husband was in the Mexican Army, but the money he made was not enough to cover our expenses or to provide for our little daughter, "Normita."
After five years in the Mexican Army, my husband was honorably discharged, and together we came to the U.S. in search of a better life. This meant that we had to leave our daughter in the care of her grandparents, which was difficult for us to do.
Nonetheless, it wasn't long after we arrived that we arranged to bring our daughter to the U.S. She was about to turn 5 and start school. My husband went to Veracruz to get Normita, and this is how she became one of many children who cross the border to be reunited with their parents.
We both worked really hard to get ahead – I as a babysitter and my husband as a lawnmower. In fact, since arriving in the U.S., my husband has worked two jobs. He has never stopped working, and he has always fought to provide for his family.
With God's blessing we had three more children. Today Normita is 16 years old and an 11th grader in San Benito, Texas. We live here, our home is here, and this is where we are happy. We own our home, and we pay our taxes.
Currently I'm a community leader with the American Civil Liberties Union of Texas. I contribute to my "colonia" by teaching the community their rights – rights they have regardless of their immigration status and regardless of whether or not they are immigrants.
When the Deferred Action for Childhood Arrivals (DACA) program was announced in 2012, Normita was very happy, because she knew she could qualify, and this would open a door to many opportunities that she didn't have before. In 2014, she was finally able to apply for DACA and is now waiting for an answer.
After President Obama's announcement of the new Deferred Action for Parental Accountability (DAPA) program, my husband and I were overjoyed. However, our children were also relieved because now my husband and I can go to work and even go to the supermarket in peace and without the fear of being deported.
We know that this is only the beginning. The fight won't end until all of the undocumented have an opportunity to come out of the shadows.
*Magaly, the author of this article, prefers to go by her first name only.
By Ian S. Thompson, ACLU Washington Legislative Office
While the American workplace is often notoriously inhospitable to transgender Americans, the federal government last month moved decisively to change that. In a new memorandum, the Department of Justice explicitly clarified that gender identity discrimination claims are covered under Title VII of the Civil Rights Act. This is another important step forward in the ongoing fight for basic fairness and equal treatment under the law for transgender Americans.
Our client Diane Schroer knows all too well how this type of workplace discrimination can have profound effects on someone's life, and her case was a critical step to ensuring other Americas don't face this type of discrimination.
Diane applied for a job with the Library of Congress as a senior terrorism research analyst after retiring from a 25-year career in the U.S. Army. Based on her distinguished record of military service, which included the Defense Superior Service Medal, Diane was offered the job and immediately accepted.
After Diane retired from the Army, she confronted feelings she had been dealing with her entire life. After careful consideration under the care of a doctor, Diane decided to transition from a man to a woman. Prior to starting work, Diane took her future boss to lunch to explain that she was in the process of transitioning. She had interviewed for the position while still presenting as a man and thought it would be easier for everyone if she simply started work presenting as a female. The following day, Diane received a call from the future boss rescinding the offer, telling her that she wasn't a "good fit" for the Library of Congress.
The Library of Congress thought Diane was the most qualified person for the job when they assumed she was a man and offered her the position. Rejecting the best candidate for a job based on her gender – including her decision to transition from one gender to another – was both unfair and illegal.
In 2005, the ACLU filed a lawsuit on Diane's behalf, alleging that the actions of the Library of Congress violated Title VII. At the time, DOJ vigorously fought Diane's lawsuit, arguing that transgender people are not protected under the sexual discrimination provision in Title VII. Thankfully, the court agreed with Diane, and – in a landmark legal victory for transgender people – ruled that discriminating against someone for changing genders is sex discrimination and a violation of Title VII.
The new DOJ memorandum discusses the importance of Diane's lawsuit in advancing the government's evolution on this issue. It further vindicates the rightness of Diane's fight against the discrimination she endured. This latest breakthrough builds on a number of important court decisions, including a historic ruling by the Equal Employment Opportunity Commission in 2012, which found that transgender people are protected under laws banning sex discrimination.
As important as these protections are, they certainly do not negate the need for clear and explicit laws that protect LGBT people from discrimination in the workplace as well as in other aspects of public life. Such laws leave no room for ambiguity, and they also demonstrate a concrete commitment on the part of the U.S. government to eradicating discrimination against individuals on the basis of both their sexual orientation and gender identity. The ACLU also continues to work in courts across the country to ensure that Title VII and other existing laws against sex discrimination are interpreted to include transgender people.
This change in policy by the DOJ vindicates Diane's battle against workplace discrimination and provides protection for transgender Americans as they struggle for the respect and dignity they deserve.
By Chris Anders, Senior Legislative Counsel, ACLU Washington Legislative Office
On January 11, 2002, the first prisoners were slammed into hastily assembled cages at the Guantánamo Navy base, and men then streamed in from across the globe. Typically brought into custody without even the most basic due process review, the newly arrived detainees included large numbers who had no reason to be in any prison, much less Guantánamo. Yet they were all now caught in a prison that one Bush official called "the legal equivalent of outer space" – a place where no laws were intended to apply.
Fortunately, there is no U.S. prison beyond the reach of the law. The U.S. Supreme Court made it clear that basic due process protections apply at Guantánamo, and that the Geneva Conventions protect even those men whom former President Bush insisted were the worst of the worst. Torture and the most obvious abuses eventually stopped, but an insidious abuse is just as persistent 13 years later: indefinite detention without charge or trial. As of today, 117 of the 127 men left at Guantánamo have not been charged or tried for any crime.
Although Barack Obama ran for president based on a promise to close the Guantánamo detention facility, his administration's efforts to carry out that promise have come only in fits and starts. Recently, the pace has increased. With the transfer of more than three dozen men out of Guantánamo over the past 18 months, the population at Guantánamo is now down to a little more than half of what it was when President Obama first took office.
But how do we get to zero at Guantánamo? As the president and his team play this game of inches in bringing down the population on a case-by-case transfer basis, here's what's left to be done:
- Transfer the 59 Guantánamo detainees who have already been cleared for release by the military and national security agencies. These detainees were all cleared five years ago, and many of them were also cleared several years before that by the Bush administration. Top officials at the Departments of Defense and State have been working hard to find countries to take the detainees, and these transfers should be completed within months rather than years.
- Put the 58 detainees who have not been cleared but also have never been charged with a crime through the Periodic Review Boards, which have the power to clear detainees for transfer. These boards have been maddeningly slow (completing only nine individual reviews for a pool of 71 detainees), and they are by no means perfect because they lack basic due process safeguards. Still, the president set up the reviews as a way to help close Guantánamo, and the reviews can only work if actually held.
- Recognize that the Guantánamo military commissions are fundamentally broken because they violate fundamental fair trial requirements. Instead, transfer the 10 detainees who have been charged or tried before a military system into the regular federal criminal courts, along with any other detainee who the government believes can and should be criminally charged.
- That would leave only a small group of detainees that the government argues is too dangerous to release, but there is not enough admissible evidence to try. Why? Because so much of the government's apparent "evidence" was obtained through torture and abuse, and every court in every civilized country in the world recognizes that coerced evidence is inherently unreliable and not a basis for determining guilt. Some of these men left at Guantánamo are featured in the Senate torture report as victims of the horrific CIA torture program. Others in this group are not in the Senate report, but only because the torture orders against them came from Donald Rumsfeld's Pentagon instead of from the CIA. But regardless of which federal agency tortured them, none of these detainees should continue in indefinite detention. Instead, if there's non-coerced evidence to support prosecution, they should be tried. Otherwise, they should be released. That is the American way.
Those steps would get us to zero. Of course, Guantánamo should have closed and indefinite detention should have ended long ago. But with two years and nine days left under President Obama, there is still time to build off the good work of the past several months and finish the job.
By Nusrat Choudhury, Staff Attorney, ACLU Racial Justice Program
The tragic killing of teenager Michael Brown in Ferguson, Missouri, last August has brought much needed attention to the epidemic of racialized policing in America. In Ferguson and cities throughout the country, police stop, search, and arrest black people and other communities of color at rates grossly disproportionate to their population.
In late December, the Missouri Supreme Court took an important step to addressing the problem: curbing the use of municipal courts as debtors' prisons. An editorial in the St. Louis Post- Dispatch explains the vicious cycle linking racial profiling and debtors' prisons in St. Louis County:
It works like this: A black driver gets pulled over in Bel-Ridge, for example, for failure to signal. Maybe a headlight is out on the car, too, or the registration has expired. The driver gets a summons for two or three violations. Hundred dollar fines are stacked on top of each other.
Violators sit and wait on the one night a month the municipal court is in session, stewing as lawyers, most of whom are white, get preferential treatment. They get called up first by the judge to dispose of the cases of their paying clients.
Those who can't afford a lawyer often can't afford the fines, either. So when their turn finally comes, they tell the court they can't pay. They may be threatened with jail if they don't come up with the money. If they miss a payment or a court date, a warrant can be issued for their arrest.
In St. Louis County, as throughout the country, modern-day debtors prisons exist despite the fact that the United States formally abolished the incarceration of people who failed to pay off debts nearly two centuries ago. In the process, poor people –disproportionately people of color – and their families suffer from the collateral impacts of jailing on employment, and housing.
In September 2014, shortly after the killing of Brown, lawyers from Arch City Defenders and law professors at St. Louis University sought help in breaking this cycle. They wrote to the Missouri Supreme Court asking for a change to the court rules that guide judges in collecting fines and fees from defendants.
The Missouri Supreme Court showed that it understood what's going on. It revised a Missouri court rule to explicitly allow judges to permit defendants to pay through installment plans and to waive or reduce fines for those who cannot pay. The rule now also requires judges to schedule a "show cause" hearing before issuing arrest warrants for failure to appear, which gives defendants an opportunity to explain why they did not or cannot pay their fines.
And, crucially important, the rule now provides that when a defendant is held in contempt of court for failure to pay, the fine may be collected by the same means used to enforce court orders awarding money damages to a party.
This means that a Missouri court cannot use its contempt authority to jail a person who is simply too poor to pay a fine or fee. Instead, it must use the same procedures routinely employed to enforcement judgments, such as ordering a lien on real or personal property. Using these methods requires providing important procedural safeguards and respecting statutory exemptions from collection for home and personal property, both of which help to protect the poor.
In a country where the racial wealth gap remains stark, the link between driving while black and jailed for being poor has a devastating impact on people and communities of color. The Missouri Supreme Court showed that it understands the need to break the cycle.
Other courts should follow its lead.