Our country’s embrace of torture after 9/11 may have seemed like a quick one: one day we didn’t torture, and the next we did, with the so-called “torture memos” to blame for the rapid shift. But the reality is that proponents of “enhanced interrogation techniques” (and other euphemistically titled cruelties) had to overcome substantial barriers in their efforts to justify torture. The first major barrier fell 10 years ago, today—many months before the torture memos were issued.

On February 7, 2002, President Bush signed a memorandum, Humane Treatment of Taliban and al Qaeda Detainees, that became his administration’s opening volley against the laws prohibiting abusive interrogations. In it, he concluded that the Geneva Conventions—which specify minimum standards of humane treatment for everyone in times of armed conflict—somehow did not protect al Qaeda members detained by the United States.

That legal sleight of hand paved the way for the more notorious torture memos that would follow, and it all but ensured a break from our country’s tradition of treating captives humanely.

The February 7, 2002, memo is important for another reason. Together with the later memos that built upon its twisted logic, the February 7 memo created a golden shield for the senior officials who authorized torture. When later confronted in court by the victims of their unlawful policies, senior officials could simply hide behind their legal memos.

Unfortunately, that tactic has worked so far. Courts have refused to rule on the legality of the cruel interrogation “techniques” used in the years after 9/11, and there has yet to be a criminal investigation of those who authorized torture.

The only criminal investigation of the CIA to date has been of low-level interrogators who exceeded the torture memos’ guidance, resulting in the death of two detainees. Although the attorney general himself stated that interrogators involved in those deaths did “things . . . that were antithetical to American values [and] that resulted in the death of certain people,” recent reports suggest that the investigation may end soon without any indictments and without any accountability. We hope that doesn’t turn out to be true if there is credible evidence to prosecute. Our nation’s reputation for upholding the human rights of detainees is already in tatters; a failure to provide accountability even for deaths would further shred it.

A decade after our government first committed us to a path including torture and other abuses, it is essential that we pause now to reflect on those policy decisions. To its credit, the Obama administration has rejected the Bush administration’s narrow understanding of the Geneva Conventions, which essentially read them out of existence in our fight against al Qaeda. But if we are truly a country committed to the rule of law, we must insist that our laws criminalizing torture and abuse be applied, and that they be applied equally to all who bear responsibility for official cruelty.

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Congress is poised to give final passage to legislation that would give a big boost to domestic unmanned aerial surveillance — aka “drones.”

As we explained in our recent report, drone technology is advancing by leaps and bounds, and there is a lot of pent-up demand for them within the law enforcement community. But, domestic deployment of unmanned aircraft for surveillance purposes has largely been blocked so far by the Federal Aviation Administration (FAA), which is rightly concerned about the safety effects of filling our skies with flying robots (which crash significantly more often than manned aircraft).

As we also explained in our report, the FAA is under pressure to loosen the reins and permit broader deployment of drones by government agencies.

One result of that pressure is this legislation (H.R. 658 — see conference report for more details), which authorizes appropriations for the FAA through fiscal 2014. Unfortunately, nothing in the bill would address the very serious privacy issues raised by drone aircraft. This bill would push the nation willy-nilly toward an era of aerial surveillance without any steps to protect the traditional privacy that Americans have always enjoyed and expected.

Congress — and to the extent possible, the FAA — need to impose some rules (such as those we proposed in our report) to protect Americans’ privacy from the inevitable invasions that this technology will otherwise lead to. We don’t want to wonder, every time we step out our front door, whether some eye in the sky is watching our every move.

On Friday, the House gave final passage to the legislation. House approval came on a quite partisan vote, with most Republicans in favor and most Democrats opposing. The Senate is scheduled to take up the bill later today.

Here are details on what the bill would do in terms of drones:

• Require the FAA to simplify and speed up the process by which it issues permission to government agencies to operate drones. It must do this within 90 days. The FAA has already been working on a set of proposed regulations to loosen the rules around drones, reportedly set for release in the spring of 2012.
• Require the FAA to allow “a government public safety agency” to operate any drone weighing 4.4 pounds or less as long as certain conditions are met (within line of sight, during the day, below 400 feet in altitude, and only in safe categories of airspace).
• Require the FAA to establish a pilot project within six months to create six test zones for integrating drones “into the national airspace system.”
• Require the FAA to create a comprehensive plan “to safely accelerate the integration of civil unmanned aircraft systems into the national airspace system.” “Civil” drones means those operated by the private sector; currently it is all but impossible for any non-government entity, except for hobbyists, to get permission to fly drones (for-profit use of drones is banned). Industry groups and their congressional supporters see this as a potential area for growth. Congress specifies that the plan must provide for the integration of drones into the national airspace system “as soon as practicable, but not later than September 30, 2015.” The FAA has nine months to create the plan. The FAA is also required to create a “5-year roadmap for the introduction” of civil drones into the national airspace.
• Require the FAA to publish a final rule within 18 months after the comprehensive plan is submitted, “that will allow” civil operation of small (under 55 pounds) drones in the national airspace, and a proposed rule for carrying out the comprehensive plan.

The bottom line is: domestic drones are potentially extremely powerful surveillance tools, and that power — like all government power — needs to be subject to checks and balances. We hope that Congress will carefully consider the privacy implications that this technology can lead to.

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An Associated Press report today reveals that, “Even as the Obama administration says it's close to defeating al-Qaida, the size of the government's secret list of suspected terrorists who are banned from flying to or within the United States has more than doubled in the past year.” The AP’s Eileen Sullivan reports that the “No Fly List” has grown to about 21,000 people, including some 500 Americans.

The AP also created an interactive feature that illustrates the layers of analysis considered by various agencies in placing individuals on the list. You can take yourself through the decision process here.

The ACLU has filed a legal challenge on behalf of fifteen American citizens and lawful permanent residents who cannot fly to or from the U.S. or over its airspace because they are on the list. Today’s article quotes one of the ACLU lawyers working on the case, Nusrat Choudhury, who said, “The news that the list is growing tells us that more people's rights are being violated. It's a secret list, and the government puts people on it without any explanation. Citizens have been stranded abroad."

Indeed, none of our plaintiffs, including two veterans of the U.S. Marine Corps (one of whom is disabled), a U.S. Army veteran, and a U.S. Air Force veteran, have been told why they are on the list or given a meaningful chance to clear their names (watch a video with retired Marine Ayman Latif here). Yet, they have been prevented from flying to visit relatives, go to school, and access employment opportunities. Those who were stranded abroad due to placement on the No Fly List while traveling overseas were permitted to fly home to the U.S. on what appear to be one-time only waivers due to the ACLU’s intervention through its lawsuit.

To deprive people of their right to travel without any notice or opportunity to object is unfair and unconstitutional. The news that the list is getting bigger only magnifies the problem.

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Two and a half years ago, the government released a damning report by the CIA’s Office of the Inspector General (OIG) relating to the “enhanced interrogation” program of the CIA. The report was released in response to an ACLU Freedom of Information Act (FOIA) request. It made headlines because of its criticism of the CIA’s program and because it is said to have prompted Attorney General Eric Holder to launch a criminal investigation into some of the CIA’s abuses.

We’ve known for some time that there were more CIA OIG reports about the torture and detention program, but a new revelation by the government confirms just how many: 11.

Over the years, we’ve counted references (in both government documents and the media) to at least six additional OIG reports, several of which relate to the deaths of detainees in CIA custody. So, in April 2011, we filed a FOIA request for those and any other reports that analyzed the CIA’s detention and interrogation programs.

In November, the government confirmed to us (in this index) that there were indeed eleven additional reports. Based on the minimal information we have so far, among the most interesting are reports on the deaths of two CIA prisoners, Abid Hamad Mahawish Al-Mahalawi and Manadal Al-Jamaidi, which are reportedly being investigated by the Justice Department. Also notable is a report on the “nonregistration” of detainees, which relates to the CIA’s practice of holding “ghost” (or unacknowledged) detainees.

Unfortunately, although the government disclosed the number of OIG reports it has, it withheld every single one, claiming that releasing any part of them would endanger national security. (To see more about the government’s arguments, see its recently filed brief and supporting declaration.)

If that excuse sounds familiar, it is because the government gave the same one before releasing a heavily redacted version of the original CIA OIG “enhanced interrogation” report in 2009. That explanation is just as overbroad and insupportable now as it was then. There is no obvious security justification for withholding information about the CIA’s use of unlawful and unauthorized interrogation techniques, and we are especially troubled by the CIA’s continued practice of keeping secret the names of the prisoners it detained. Even now, a decade after 9/11, we still don’t know all of the prisoners held by the CIA, why they were held, for how long, or what happened to those released.

The lack of any meaningful accountability for torture and abuse committed in America’s name is unacceptable, as are the government’s latest efforts to hide what happened.

We’re planning to challenge the withholding of the reports in the next few weeks. Stay tuned.

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