The executive summary of the Senate torture report documents an overwhelming array of CIA deceptions, ranging from misrepresentations about the "effectiveness" of torture to misstatements about the number of detainees in CIA custody.
The breadth of the agency's deceit – to the White House, the Department of Justice, Congress, and the public – is stunning.
CIA Lies to Everyone about the "Effectiveness" of Torture
Torture is morally abhorrent, forbidden by law, and incompatible with our nation's values. Its "effectiveness" should be irrelevant. Still, the purported effectiveness of torture is a centerpiece of the Senate report, because the CIA's claims about it were so important to the authorizations and legal approvals of the torture program – and because its lies and omissions were so outrageous.
From 2003 through 2009, when seeking to justify its so-called "enhanced interrogation techniques," the CIA repeatedly asserted that torture was necessary because it allowed the agency to disrupt terrorist plots and capture additional terrorists, thereby saving lives.
The Senate report definitively puts this myth to rest. After reviewing more than six million pages of CIA records, the Senate found that 20 of the CIA's most cited torture "success stories" were "wrong in fundamental respects," and that torture did not produce unique, otherwise unavailable intelligence. The CIA's lies and misstatements took several forms. In some cases, the CIA already possessed information it claimed coercion produced. In others, detainees provided information without being tortured, or it turned out a "plot" wasn't a real threat in the first place.
In other words, even by the CIA's twisted effectiveness metric, the agency's extreme and brutal techniques were actually counterproductive. According to the report, many detainees provided significant, accurate information without being subjected to torture. And on more than one occasion, detainees fabricated information in order to placate their torturers.
CIA Lies to the Department of Justice About the Underlying Facts
The CIA lied repeatedly to the Department of Justice in order to obtain the agency's approval of its torture program. From 2002 through 2007, the Office of Legal Counsel (OLC) within DOJ issued several opinions that provided legal justifications for torture – opinions that relied in significant part on the CIA's misrepresentations concerning the conditions of confinement for detainees, the application of coercive techniques, and the effectiveness of those techniques.
For example, the CIA misled the OLC about Abu Zubaydah, the agency's first detainee, claiming that Zubaydah was the "third or fourth man" in Al Qaeda; that he had been "involved in every major terrorist operation carried out by Al Qaeda;" that he was "well-versed" in resistance to interrogation techniques; and that his interrogation team was "certain" that he was withholding "critical threat information." These claims were simply not supported by CIA records.
The CIA also dissembled about torture techniques. Among other examples, the agency stated that it would stop subjecting a detainee to standing sleep deprivation if it led to edema; that medical personnel would intervene when standing sleep deprivation resulted in hallucinations; that the CIA's "water dousing" technique did not involve cold-water immersion; and that the CIA diapered detainees "for sanitation and hygiene purposes" – and not "[t]o cause humiliation" or "induce a sense of helplessness." Yet the agency's own records contradict these assertions – the abuses continued regardless of harm or limitations.
And although the CIA told OLC that detainees wouldn't be shackled with their hands above their heads for more than two hours, the CIA placed detainees in this position for extended periods of time. One detainee, Ridha al-Najjar, was handcuffed to an overhead horizontal bar for 44 hours in the span of two days.
OLC similarly relied on the CIA's claims that detainees did not experience physical pain during waterboarding, and that any physical sensations (such as choking) "end when the application ends." OLC shouldn't have relied on these claims, which are implausible on their face. Now we know the CIA's own records showed that the waterboarding of Khalid Sheikh Mohammad amounted to a "series of near drownings," and that Abu Zubaydah's waterboarding sessions resulted in "immediate fluid intake and involuntary leg, chest, and arm spasms" and "hysterical pleas." During one waterboarding session, Zubaydah became "completely unresponsive, with bubbles rising through his open, full mouth." After medical intervention, he regained consciousness and expelled "copious amounts of liquid." Most would consider that to be ample evidence of pain and "physical sensation."
The CIA's lies went beyond the torture techniques themselves; they extended even to the training and backgrounds of its interrogators. The CIA told the OLC that its interrogators were trained for approximately four weeks, and that all personnel involved directly in interrogations were appropriately screened. But in fact, the CIA officers and interrogators who conducted interrogations in 2002 did not undergo any training, and numerous CIA officers involved with the program had "engaged in inappropriate detainee interrogations, had workplace anger management issues, and had reportedly admitted to sexual assault."
CIA Lies to the Media About the Torture Program
The Senate report also describes how, in an attempt to shape press coverage, CIA officers and the CIA's Office of Public Affairs (OPA) provided classified information to journalists, often repeating the same inaccurate statements that the agency had made to policymakers. For example, in March 2005, based in part on information provided by the CIA's OPA, the New York Times quoted an unnamed senior U.S. official as claiming that "intelligence obtained by those rendered, detained and interrogated ha[d] disrupted terrorist operations" and saved lives in the United States and abroad.
* * *
As these and other stories show, the CIA had an institutional interest in maintaining its ability to torture detainees – and the agency was willing to bend the truth to preserve its goals.
In late 2005, for example, while the Senate was debating the Detainee Treatment Act, the CIA drafted a briefing for President Bush concerning one of the detainees it had tortured, Abu Ja'far al-Iraqi. The CIA's first draft stated that al-Iraqi provided "almost no information that could be used to locate former colleagues or disrupt attack plots." After reviewing the draft, one of the CIA interrogators wrote an email arguing that the language needed to change, because it implied that interrogations weren't working. Relying on a chillingly banal metaphor, he observed, "The glass is half full, not half empty, and is getting more full every day." Ultimately, the statement that al-Iraqi had provided "almost no information" was deleted from the briefing.
These examples barely scratch the surface of the CIA's troubled relationship with the truth. It's time for the agency to be held to account for its deceit.
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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
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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.