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Trashing TransparencyIn November 2005, U.S. marines in Iraq were involved in the killing of 24 civilians—including women and children. Shortly after the story became public, the ACLU filed a Freedom of Information Act (FOIA) request for all documents related to the incident and other civilian casualties of the wars in Iraq and Afghanistan. Although we received thousands of documents in response, the government did not give us a single document relating specifically to the killings at Haditha. Apparently, it threw them away instead. Last week, The New York Times reported that it had found hundreds of pages of records relating to the horrific incident in Haditha . . . in a junkyard, being burned as kindling to cook a dinner. The U.S. government could have turned these documents over and, in the process, helped Americans obtain the information they need in order to critically reflect on our conduct in Iraq and other theaters of war. Instead it chose to trash transparency, and as a result, strangle any chance of proper accountability. The documents discovered by The New York Times reflect a disillusioned and tragically misdirected mission that resulted in death and suffering in Iraq and among the Marines themselves. Ironically, the military’s attempt to fog the wars in Iraq and Afghanistan has worked doubly against the interests of the American people. First, the American public was denied access to records reflecting its government’s conduct for years. Second, its servicepersons were forced to operate in an environment where the death of innocent civilians was considered a “cost of doing business,” resulting in severe damage to the servicepersons themselves. These documents should have been made public. Throwing away documents relating to atrocities in Iraq will not make those atrocities go away. Instead, it only breeds distrust in our government and deprives us of the information we need as citizens to hold our leaders accountable and to make informed choices about our policies. Learn more about government secrecy: Sign up for breaking news alerts, follow us on Twitter, and like us on Facebook. Tags: FOIA, Freedom of Information Act
ACLU Wins Round in Battle Against Warrantless Cell Phone Location Tracking Today the ACLU won a significant victory in our battle to ensure that cell phones don’t become Big Brother tracking devices. Following a four-year fight, the U.S. Court of Appeals for the D.C. Circuit has ordered the Department of Justice (DOJ) to comply with our Freedom of Information Act (FOIA) request and turn over the names and docket numbers in numerous cases where the government accessed cell phone location data without a warrant. This fight began in 2007 when we filed the request seeking the policies and procedures used by DOJ in obtaining cell phone data and other information. Everyone acknowledges that the government has a right to keep the details of particular investigations secret, but when the government adopts whole new policies that affect our society’s privacy rights in very broad ways — that is something that should be decided democratically, and that can’t happen if we don’t even know what’s happening. So when the government refused to respond adequately to our request, we filed a lawsuit along with the Electronic Frontier Foundation. Among the documents we sought were the case names and docket numbers for cases where individuals were criminally prosecuted after cell phone location data was accessed without a warrant. U.S. District Judge James Robertson ordered the DOJ to produce the information, at least in cases that ended in a conviction or guilty plea. The DOJ appealed that result, and today, the appeals court upheld the lower court's ruling, ordering the DOJ to make that information public. (We also want information on cases where the defendant was not convicted; the court sent that question back to the District Court so it remains unresolved.) A related case is heading for the Supreme Court — it's about whether police need a warrant before planting a GPS device to track a person's car. If the government wins that case, it will become much harder to prevent it from using our cell phones in the same way. Today's decision is a significant victory in the fight against warrantless tracking of Americans by their government. There is no good reason for DOJ to keep this case information secret, except to keep the American people in the dark about what its own government is doing and stifle debate about the new tracking powers the government is claiming. We look forward to reviewing the materials that will finally be disclosed by the DOJ. The ACLU will continue to work in the courts, in Congress, and with companies to increase privacy protections for location information. Stay informed and get involved through our Demand Your dotRights campaign! Learn more about surveillance: Sign up for breaking news alerts, follow us on Twitter, and like us on Facebook. Tags: cell phone, Department of Justice, FOIA, Freedom of Information Act, surveillance, tracking
Sounding "Suspicious": Making Sure the FBI Protects Americans AND Our LibertiesToday we filed a lawsuit to enforce a Freedom of Information Act (FOIA) request asking the government for information about a nationwide FBI system called eGuardian, which is used to collect and share so-called "Suspicious Activity Reports" (SARs) about people from local, state and federal law enforcement and intelligence agencies. The government has been using eGuardian since January 2009 to compile data on thousands of Americans, and the ACLU wants to know how this system works, and what safeguards are in place to make sure that the constitutional rights of innocent people are protected. So what's "suspicious activity?" Based on the vague and broad definitions used in past SAR programs, it could be such innocuous and commonplace activities as using binoculars, taking pictures or video, drawing diagrams and taking notes. SAR programs like eGuardian open the door to racial profiling and other improper police practices precisely because they give police unwarranted discretion to stop people who are not reasonably suspected of wrongdoing and to collect their private information for massive government databases. And that's not the only problem. We also don't know what the government does with the information it collects about innocent people through SARs. The FBI didn't respond to our request under the Freedom of Information Act for information about how long SARs are retained in eGuardian and what protections ensure that SARs conveying information about peoples' religion, race, ethnicity, or constitutionally protected activities aren't misused when making decisions on whom to target in the future. This is troubling because so many SARs involve people who aren't reasonably suspected of wrongdoing. As of December 2010, two years after eGuardian was launched, 7,197 SARs were submitted to the system—of which only 103 led to criminal investigations. We don't know whether the FBI entered the other 7,094 SARs into eGuardian anyway, how long the data will be stored, or how it has been shared with other government agencies. Our lawsuit seeks this information so we can know if the FBI is storing, using and disseminating an ocean of information about innocent people in ways that violate the Constitution and privacy laws. Our concerns about eGuardian are based on the government's history of improper and unconstitutional data collection about innocent people. In 2007, we found out that the Pentagon had been collecting reports of "suspicious activity" near military bases for its TALON database system, a precursor to eGuardian. TALON turned out to include information about people involved in innocent and constitutionally protected activity, such as anti-war meetings and protests. The program was shut down after the abuses came to light, but the data was transferred to FBI databases, where it likely still resides. Against the backdrop of ever-expanding government surveillance—like yesterday's revelations about the NYPD's operations in Muslim communities—our eGuardian lawsuit is part of the ACLU's ongoing effort to make sure that the government is playing by the rules when it collects and shares information about Americans. Learn more about spying: Sign up for breaking news alerts, follow us on Twitter, and like us on Facebook. Tags: eGuardian, FOIA, spying, surveillance
FBI Needs Constitutional Law 101, Not "Islam 101"Last week, Wired’s Spencer Ackerman reported on a FBI document released through an ACLU document request that the agency uses to train new recruits on best practices for “successful interviews/interrogations with individuals from the M.E. [Middle East].” As Ackerman concludes, the training document “presents much information that has nothing to do with crime and everything to do with constitutionally-protected religious practice and social behavior.” The document was released to the ACLU of Northern California and the Asian Law Caucus as part of a nationwide ACLU initiative to uncover information about a new FBI “racial mapping” program. The program, which is authorized by a 2008 FBI manual, raises serious concerns about the FBI unfairly and unlawfully targeting American communities for investigation and surveillance based on race and ethnicity. We are concerned because biased FBI training can only lead to biased enforcement. And biased policing based on misinformation about race and religion violates American values and makes us less safe by drawing the focus away from credible threats. To learn more, local ACLU affiliates filed Freedom of Information Act (FOIA) requests with FBI field offices in 33 states and Washington, D.C. for information about how FBI agents around the county have been collecting and mapping racial and ethnic demographic information, the locations of ethnic-oriented businesses and facilities, and even track certain racial and ethnic “behaviors.” The FBI training document is among the hundreds of pages of documents that are beginning to be revealed through the information requests. Unfortunately, rather than trim the overbroad authorities that allow the FBI to target intelligence collection efforts on nothing more than race, ethnicity and national origin, the FBI is trying to expand them. The FBI should refrain from monitoring people unless there is reasonable suspicion that they have committed a criminal act or are taking preparatory actions to do so. Join us in calling on the Attorney General to rein in the FBI’s investigative authorities. Learn more about surveillance: Sign up for breaking news alerts, follow us on Twitter, and like us on Facebook. Tags: FBI, FOIA, racial mapping, spying, surveillance
No Death Left Behind: House Judiciary Committee Approves the Death in Custody Reporting ActTwo years ago, the Department of Homeland Security (DHS) had no idea how many immigration detainees had died on its watch. Yes, you read that right. In 2009, DHS had simply lost track of the number of immigrants who had died in the detention centers that it operates. It wasn’t until the ACLU brought a lawsuit under the Freedom of Information Act that the government finally launched an investigation to uncover the real death toll. Felix Franklin Rodriguez-Torres – a man who died in DHS custody – was forgotten by the government until his name emerged in documents obtained by the ACLU in the lawsuit. Once the death was exposed, New York Times reporter Nina Bernstein reconstructed the tragic story: “By the time the ailing detainee was taken to the emergency room at Maricopa Medical Center in Phoenix, on Dec. 27, 2006, he had a mass in his neck that had ‘tripled in size’ and obstructed his breathing, according to a government accounting form summarizing his care. Too far gone for chemotherapy, he was soon placed on life support, and he died when it was disconnected.” A bill approved this morning by the House Judiciary Committee would ensure that deaths in custody no longer slip through the cracks. The crux of the bill – the Death in Custody Reporting Act – is simple: when someone dies in law enforcement custody, including behind the closed doors of a prison or detention facility, the death must be reported to the United States attorney general, and the attorney general must study such deaths to prevent more from happening. States that fail to comply with the reporting requirements will have their federal criminal justice funding reduced. The bill’s coverage extends to the 2.3 million inmates incarcerated in America’s jails and prisons and the 400,000 immigrants locked up in detention centers each year. More than 120 immigrants have died in the government’s custody since late 2003. It’s a small step to be sure. The bill won’t even begin to solve the litany of human rights abuses – everything from solitary confinement to brutal beatings to sexual abuse – that haunt prisons, jails and immigration detention centers. But the law is long overdue. After all, citizens in a democracy shouldn’t have to sue the government just to find out who’s dying in their jails.
Learn more about prisoners' rights: Sign up for breaking news alerts, follow us on Twitter, and like us on Facebook. Tags: Death in Custody Reporting Act, detention, DHS, FOIA
ACLU Files Lawsuit for Info on Alleged Bush-Era Operation to Discredit Blogger & Professor Juan ColeToday we filed a lawsuit to enforce a Freedom of Information Act (FOIA) request seeking any information pertaining to University of Michigan Professor Juan Cole. Last month, The New York Times reported that Bush administration officials attempted to "gather sensitive information" to discredit Professor Cole because he was a vocal critic of the Iraq War and the Bush administration on his blog, Informed Comment. Glenn Carle, a former CIA agent, alleged in the Times article that he had seen a memo written by his supervisor, David Low, intended for the White House that contained "derogatory details" about Professor Cole. On June 23, we filed a FOIA request with the CIA, FBI, Justice Department and the Office of the Director of National Intelligence (ODNI) seeking the Low memo and any other documents about Professor Cole. The CIA and FBI failed to respond at all. Our lawsuit today seeks to enforce the FOIA request. Professor Cole said in statement today: Americans don't need permission from their government to write and publish their political opinions. If the Bush White House pettily attempted to use the CIA to destroy my reputation by seeking dirt on my private life in order to punish me for speaking out, that would be a profound violation of my Constitutional rights. Such a chilling of First Amendment freedoms, if it did in fact take place, would send shock waves through the public arena, threatening to limit the open debate that makes our democracy strong. The public has an urgent need to know whether government agencies are sweeping aside the law and spying on Americans who do nothing more than speak their minds. Cole, who considers himself a "relatively small fish," told the NYT: “They must have been dismayed at what a boring life I lead." Learn more about free speech: Sign up for breaking news alerts, follow us on Twitter, and like us on Facebook. Tags: Bush administration, CIA, David Low, FBI, FOIA, George W. Bush, Glenn Carle, Juan Cole
ACLU Sues for Info on Bagram DetaineesThis morning, we filed a lawsuit to enforce our April 2009 Freedom of Information Act (FOIA) request for information about Bagram detainees. We're looking for basic information, such as how many people are imprisoned at Bagram, who they are, how long they’ve been detained, and where and under what circumstances they were captured. We are also requesting records about the rules and policies that govern Bagram detentions, the process for prisoners to challenge their detention, and the conditions of confinement. So far, the agencies we requested the information from—the Departments of Justice, State, Defense and the CIA—have been less than forthcoming. According to news reports, the military is holding more than 600 detainees at Bagram, and that includes not only Afghan citizens captured in Afghanistan, but also an unknown number of foreign nationals captured outside of Afghanistan and brought to Bagram. Some of these prisoners have been detained for as long as six years without access to lawyers, have been tortured, and only recently have been permitted any contact with their families. At least two Bagram prisoners have died while in U.S. custody, and Army investigators have classified those deaths as homicides. Melissa Goodman, staff attorney with the ACLU National Security Project, said in a statement today: "As long as the Bagram prison is shrouded in secrecy, there is no way to know the truth or begin to address the problems that may exist." Last month, Marine Maj. Gen. Doug Stone called for the release of most Bagram detainees, saying "there is little evidence against them and they pose no threat." And earlier this month, President Obama released guidelines that will give Bagram detainees more of an opportunity to challenge their detention before a military panel, although Bagram detainees will still have no access to lawyers or to courts. The New York Times opined about this change, and the state of detainee rights at Bagram yesterday, writing: "There is ample reason to question whether the new protections are sufficient, especially for existing prisoners already held for long periods on stale evidence." Jonathan Hafetz, staff attorney with the ACLU National Security Project, said today: "President Obama's pledge to shut down Guantánamo will be an empty gesture if we only replace it with 'other Gitmos' elsewhere."
Emptying One Black Hole to Fill AnotherYesterday, the Justice Department filed a brief (PDF) with the D.C. Court of Appeals asserting that detainees in U.S. custody at Bagram Air Force Base in Afghanistan have no right to challenge their detention in American courts. Sound familiar? In early December 2007, Bush Justice Department lawyers made the same argument, except they were arguing that Guantánamo detainees didn't have these rights. The Supreme Court disagreed: in the landmark Boumediene v. Bush decision, the high court found that detainees in U.S. custody at Guantánamo did have the right to challenge their detention. Jonathan Hafetz, staff attorney with the ACLU's National Security Project, said in a statement today: Guantánamo was the Bush administration's effort to do an end-run around the Constitution, and the Obama administration is now essentially using Bagram as a way to do an end-run around Guantánamo and the constitutional right of habeas corpus found to apply there. Simply shipping detainees from around the world to an alternative destination is not a solution, and flouts the principles laid down by the Supreme Court. Over the weekend, the White House announced that prisoners at Bagram would be allowed to present evidence challenging their detention before "Detainee Review Boards." Detainees would also be assigned a "personal representative" (read: not a lawyer) to help with their case. In the meantime, we await responses from an alphabet soup of government agencies to our Freedom of Information Act request for information about the detainees held at Bagram. The CIA has been less than forthcoming (PDF); we're still waiting for answers from the departments of Defense, Justice and State. We're seeking basic information, including how many people are imprisoned at Bagram, who they are, how long they've been detained, and where and under what circumstances they were captured. We're also requesting records about the process for prisoners to challenge their detention and designation as "enemy combatants." For the Obama administration to treat Bagram detainees the way the Bush administration treated Guantánamo detainees is to re-create a dangerous precedent. Let's not allow Bagram become the new Gitmo.
Coal Miners Pay the Price for Unlawful Government SecrecyFor anyone looking for the human price of unlawful government secrecy, take time to consider Bob Snashall’s recent editorial in The Charleston Gazette. Snashall spent 30 years as a freedom of information adviser within the U.S. Labor Department Solicitor’s office, Division of Mine Safety and Health. The Bush administration’s circumvention of miner safety through unlawful government secrecy isn’t major news in West Virginia. We are all too familiar with the dangerous nature and history of coal mining, and the very creation of most federal mining statutes was in response to mining disasters here (Google “Monongah”, “Buffalo Creek”, “Sago”, and “Aracoma” mining disasters to learn more). In the past, with the assistance of open government laws like the Freedom of Information Act (FOIA), miners’ representatives and company officials could use information collected by Mine Safety and Health Administration (MSHA) to make effective policy decisions concerning the safety of miners all over the country. Not that it should surprise anyone, but adhering to the rule of law worked out pretty well. Over time, mines across the country became safer places to work. Then came the 2000 elections, and a great deal changed. Starting, as Snashall cites, with the systematic elimination of miner accident files (crucial to determining safer mining practices and holding dangerous operators accountable), the Bush administration declared war on open-government practices. At this point, it is important to conceptualize how government secrecy really hurts the cause of mine safety and, by extension, the miners who do the work. MSHA collects information regarding several things. This information, when taken as a whole, can show trends in types of accidents, and then can be used to formulate effective regulations to keep people safer in their jobs. Because mining is a very dynamic industry (new techniques, new machinery, and having to dig deeper holes to get what you are looking for), the open flow of information between the government, miners’ representatives, and company officials is essential to keeping people safe and to effectively challenging techniques and policies that put miners in danger. If the government ignores law and refuses to release information requested through the FOIA, then official debate is finished before it even gets started. It is nearly impossible for a miner to challenge dangerous practices if the government agency responsible for the information regarding those practices refuses to let it out in the open. This is one case where unlawful government secrecy affects the everyday lives of ordinary people. In this case, the last eight years of disregard for the FOIA have left the government with blood on its hands. Hopefully, President-elect Obama will address the systemic problem of government secrecy throughout the executive branch and demand that agencies under his supervision adhere to the rule of law, especially in respect to the Freedom of Information Act. It is a campaign promise he made and one that, for the sake and safety of miners, he can’t afford to neglect. |
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