The Government Has Information on Gina Haspel’s Torture Record. The Senate Can’t See It.
In 2005, the CIA destroyed 92 videotapes that had depicted the torture of two detainees. The destruction took place over objections from the White House, the CIA’s legal counsel, and senior intelligence officials.
Gina Haspel, President Trump’s nominee to head the CIA, drafted the cable ordering the tapes' destruction and lobbied for them to be shredded. She claims, however, that she did not think the cable she drafted would be sent before “making sure that we had all the stakeholders’ concurrence.”
Now, a bipartisan group of senators, including Sen. Jeff Flake (R-Ariz.), Sen. Martin Heinrich (D-N.M.), Sen. Ron Wyden (D-Ore.), Sen. Dianne Feinstein (D-Calif.), Sen. Kamala Harris (D-Calif.), Sen. Jack Reed (D-R.I.), and Sen. Angus King (I-Maine), are calling on the Justice Department to make a federal prosecutor’s report about the destruction of the videotapes available to senators before the chamber votes on Haspel’s nomination.
In 2008, then-Attorney General Michael Mukasey appointed federal prosecutor John Durham to investigate the destruction of the tapes. Durham’s inquiry was later expanded to look into “alleged CIA mistreatment of detainees” and “whether federal laws were violated in connection with the interrogation of specific detainees at overseas locations.”
While an executive summary of the report has been made available to Senate Intelligence Committee members, the entire report has been kept a secret — including from the full Senate, which will be voting on Haspel if the committee approves her nomination. The New York Times lost a previous legal challenge to make the report publicly available.
The videotapes were destroyed in complete disdain for the rule of law. In 2004, one year before the tapes’ destruction, a judge ordered the CIA to “produce or identify” records relating to the treatment of detainees in CIA custody. That order came as a result of a legal challenge by the ACLU. One year later, a federal judge in a separate case ordered the government to search for video or audio recordings of detainee interrogations. In clear defiance of the courts, the CIA destroyed the tapes.
The tapes were shredded just one day after the Senate voted on a 2005 amendment which, had it passed, would have created an independent commission to look into the agency’s detention practices. According to the executive summary of an extensive report on CIA torture by the Senate Intelligence Committee — the full version of which has also been kept secret — that vote prompted “renewed interest at the CIA to destroy the videotapes” over fears that “such a commission would lead to the discovery of videotapes documenting CIA interrogations.”
Haspel’s nomination has prompted renewed urgency to release the Durham report. In her confirmation hearing last week, Haspel contradicted the CIA’s own documents when she claimed that there was only one detainee depicted in the tapes, not two.
The report may also shed light on conflicting statements from Haspel and her former boss, Jose Rodriguez, about her knowledge of his decision to order the videotapes destroyed. Rodriguez has implied that Haspel knew more than she has let on.
Durham ultimately decided not to bring any charges — part of a long and shameful pattern of impunity when it came to the CIA’s unlawful program. Because the basis for Durham’s decision has been hidden from the public, we have no assurances about Durham’s conclusions, and we continue to call for a comprehensive and independent investigation of the torture program. News reports indicate that his investigation includes precisely the kind of information about Haspel that the CIA has been effectively shielding from the public.
According to NBC News, Democratic members of the Senate Intelligence Committee have prepared a “disturbing” document that addresses “comments by Haspel in support of the CIA’s brutal interrogation program at the time it was ongoing.” The Intercept further reports that information from Durham’s inquiry is included in the memo:
Relying on classified records, it goes into detail on Haspel’s role in torture, the destruction of evidence, and her tenure more broadly, according to people briefed on its contents.
The memo draws from the results of an investigation by special prosecutor John Durham, who looked into CIA activity following 9/11 and ultimately chose not to bring charges.
Every American should be wary of what Sen. Wyden has described as an “A to Z cover-up” of Haspel’s torture record. A vote on her nomination without access to her full record, including the Durham report, would be a failure of the Senate’s constitutional obligation to provide ‘advice and consent’ on nominations.
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
Press ReleaseDec 2024
National Security
Religious Liberty
ACLU Statement on New White House Strategy to Counter IslamophobiaACLU Statement on New White House Strategy to Counter Islamophobia
WASHINGTON – The Biden administration today released the first-ever national strategy to counter Islamophobia and related forms of bias and discrimination, including hate against Arab, Sikh, and South Asian Americans. In advance of the strategy, American Civil Liberties Union and its partners had urged the administration to overhaul government programs that reflect anti-Muslim discrimination. In particular, we have called for urgent action to constrain governmental agencies from continuing to exercise their authorities and technology to wrongly surveil and investigate, watchlist, and question and detain Muslims at the border, as well as deny immigration benefits to people from Muslim-majority countries. While the White House raised expectations that many of these issues would be addressed, the final strategy ended up falling far short. The following is a statement from Hina Shamsi, director of the ACLU’s National Security Project: “While this strategy acknowledges discrimination and its harms, it does little to end them and is a squandered opportunity. For decades, American officials have invoked national security to pass laws and implement programs that disproportionately harm Muslims and people perceived to be Muslim. A serious anti-discrimination strategy would concretely address multiple bias-infused government practices that deny our communities equal participation in civic life and our democracy, like federal watchlisting, surveillance, and investigation. We’re profoundly frustrated that the administration didn’t take even the basic, overdue step of recognizing that anti-Muslim discrimination is uniquely normalized and embedded in government policies.” -
VirginiaDec 2024
National Security
Trabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted ManTrabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted Man
Our client, Nizar Trabelsi, is in the United States against his will. The federal government brought him here from Belgium more than a decade ago and charged him with terrorism-related crimes. At trial, the government’s case failed: a federal jury found Mr. Trabelsi not guilty. But instead of allowing Mr. Trabelsi to return to Belgium after his acquittal, the United States placed him in highly restrictive immigration detention and began an ongoing effort to force him to Tunisia, where he was born and where he will very likely be tortured. Mr. Trabelsi’s detention violates the Constitution, immigration law, and the extradition treaty between the United States and Belgium. Through this lawsuit, he seeks to return to Belgium, and he demands an immediate improvement of his detention conditions. -
Press ReleaseDec 2024
National Security
Immigrants' Rights
Federal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is UnlawfulFederal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is Unlawful
ALEXANDRIA, Va. — This week, the U.S. District Court for the Eastern District of Virginia ruled that the court does not have jurisdiction to decide whether the government can continue to detain Nizar Trabelsi, a Tunisian national who was brought to the United States against his will for prosecution and was cleared of all charges last year. The ruling means the United States will be able to continue to detain Mr. Trabelsi while it attempts to deport him to Tunisia, where he was born and where, as an immigration judge ruled earlier this year, he will likely face torture. The court also concluded that even if it did have jurisdiction over Mr. Trabelsi’s case, his claims challenging the government’s detention of him would fail. “Reviewing claims that the government is holding someone unlawfully is at the core of the judicial function, and we’re heartbroken for our client that the court got this so wrong,” said Brett Max Kaufman, senior staff attorney with the ACLU’s Center for Democracy. “The government’s arguments in defense of Mr. Trabelsi’s detention makes a hash of the Constitution, immigration laws, and its own extradition treaty.” In 2013, the United States forcibly extradited Mr. Trabelsi from Belgium to face criminal charges in the United States. In July 2023, after almost 10 years of highly restrictive pretrial detention, a federal jury cleared Mr. Trabelsi of all charges. But instead of releasing Mr. Trabelsi or returning him to Belgium, the U.S. transferred him to immigration detention, wrongly treating him as an applicant for admission and placing him in the deportation process. Over the years, the Belgian government has issued multiple formal diplomatic requests asking the U.S. to facilitate his return, but the U.S. has refused to send him back. Mr. Trabelsi filed a lawsuit challenging the government's authority to detain him. He also sought immediate improvements to his detention conditions. Those claims were not part of the court’s ruling today, and will continue to be litigated on a separate track. “Mr. Trabelsi only wants to return to Belgium after being illegally extradited to the United States, held for ten years, and then acquitted by a jury of any crimes,” said Nicole Hallett, clinical professor of law and director of the Immigrants’ Rights Clinic at the University of Chicago Law School. “He cannot be held indefinitely and we will continue to fight to make sure that justice ultimately prevails.” Mr. Trabelsi is represented by the American Civil Liberties Union, the University of Chicago Law School’s Immigrants’ Rights Clinic, the ACLU of Virginia, and Professor Jonathan Hafetz of Seton Hall Law School. The complaint in Trabelsi v. Crawford was filed against Jeffrey Crawford, warden of the Farmville Detention Center where Mr. Trabelsi is being held; Liana Castano, ICE field office director for the Washington Field Office; Alejandro Mayorkas, secretary of the Department of Homeland Security; and Merrick Garland, U.S. attorney general.