ACLU History: September 11, 2001: A Nation Challenged - Case Summaries

Following are highlights from the ACLU's ongoing national security docket of more than 50 cases in which the ACLU has challenged unlawful government policies and practices, defended the rights of detainees, battled new surveillance initiatives, protected the right to dissent, and mobilized the public to stand up for their civil liberties.

ACLU v. Department of Defense: Getting to the Truth about Torture

In October 2003, more than six months before the horrific images of abuse at Abu Ghraib prison surfaced, the ACLU filed a Freedom of Information Act (FOIA) request seeking documentation of investigations into torture and abuse perpetrated in U.S.-controlled detention facilities in Iraq and Afghanistan, and at Guantánamo Bay Naval Base.

As a result, the government has now turned over more than 130,000 pages of documents detailing the torture and abuse of detainees in American custody. These documents show both that hundreds of prisoners were tortured in the custody of the CIA and Department of Defense, and that the torture policies were devised and developed at the highest levels of the Bush administration.

The materials the ACLU has obtained through its FOIA lawsuits have provided crucial data to human rights organizations, reporters, investigators and the public on the role of government officials in authorizing or tolerating torture and abuse. For example, the ACLU's litigation forced the government to release the now infamous "torture memos" written be Department of Justice lawyers, which provided the foundation for the Bush administration's torture program.

ACLU v. NSA: Uncovering Unlawful Surveillance

After The New York Times revealed in late 2005 that the U.S. government had secretly authorized the National Security Agency (NSA) to wiretap the phone calls and read the emails of people in the United States (including citizens) without a warrant in blatant violation of a law that prohibited the practice. The ACLU filed a first-of-its-kind lawsuit challenging the program. In 2006, a federal court ruled that the NSA program was unconstitutional and should be stopped, saying, "[I]t was never the intent of the Framers to give the President such unfettered control, particularly where his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights."

An appeals court later dismissed the challenge because it found plaintiffs did not have standing to sue if they could not prove with certainty that they had been wiretapped and the Supreme Court declined to review that ruling. However, the ACLU continues to challenge warrantless surveillance, particularly through a lawsuit seeking to invalidate the Foreign Intelligence Surveillance Act (FISA) Amendments Act of 2008, which not only expanded the government's power to conduct warrantless surveillance, but also immunized telecom companies for their participation in the program. The ACLU filed the 2008 FISA case, Amnesty v. Blair, on behalf of a broad coalition of attorneys and human rights, labor, legal and media organizations whose ability to perform their work – which relies on confidential communications – will be greatly compromised by the new law. At this writing, the case is ongoing.

El-Masri v. Tenet: Exposing "Extraordinary Rendition"

In a history-making lawsuit, the ACLU in 2005 challenged the CIA on behalf of Khaled El-Masri, an entirely innocent victim of "rendition" who was released without ever being charged. The lawsuit accused former CIA Director George Tenet of violating U.S. and universal human rights laws when he authorized agents to abduct El-Masri, beat him, drug him, and transport him to a secret CIA prison in Afghanistan. The corporations that owned and operated the airplanes used to transport El-Masri were also named in the case.

A judge dismissed the case in May 2006 after the government intervened, arguing that allowing the case to proceed would jeopardize state secrets – despite the fact that El-Masri's story was already known throughout the world. The ACLU appealed that ruling up to the Supreme Court, which in 2007 declined to review the matter.

Undaunted, the ACLU has taken the United States to task for violating El Masri's universally recognized human rights by filing a case with the Inter-American Commission on Human Rights (IACHR) a tribunal based in Washington D.C. In the petition the ACLU has asked that the Commission hold the U.S. responsible for violating El Masri's rights to be free from forced disappearance and torture, declare that the extraordinary rendition program violates the American Declaration of the Rights and Duties of Man, and recommend that the U.S. acknowledge and apologize to El Masri for his mistreatment. In August 2009, the IACHR accepted the petition, and the Commission is currently awaiting a response from the U.S. government.

Al-Marri v. Spagone: Demanding One's Day in Court

In a case that highlights the dangers of an unending "war on terror," the ACLU represented Ali Saleh Kahla al-Marri, a Qatari national who came to the U.S. lawfully with his wife and five children, and enrolled to pursue a master's degree in Peoria, Illinois. Al-Marri was arrested by the FBI and subsequently indicted by a federal grand jury on credit card fraud charges. But a few weeks before his case was to go to trial, President Bush declared Al-Marri an "enemy combatant," and locked him in solitary confinement in a South Carolina Navy brig for more than five years without charging him with a crime or affording him a trial as the Constitution requires.

The habeas case was resolved when – pending review by the Supreme Court – the Obama administration finally brought charges against al-Marri in federal court. This is precisely the opportunity Al-Marri had sought all along, and the opportunity he should have been given—in accordance with our Constitution—seven years ago when he was first arrested.

Doe v. Holder, Library Connection v. Gonzales and Internet Archive v. Mukasey: Challenging "National Security Letters"

The National Security Letter (NSL) provision of the Patriot Act allows the FBI to demand personal customer records from Internet Service Providers, libraries and financial institutions without prior court approval or suspicion of any wrongdoing. Through NSLs, the FBI can compile vast dossiers about innocent people and obtain sensitive information such as the web sites a person visits, a list of e-mail addresses, or even the identity of those who post anonymous speech on a political website. The FBI has the power to forbid or "gag" NSL recipients from telling anyone anything about the demand for records.

Since 2004, the ACLU has filed three lawsuits challenging the "national security letter" statute and gag orders. The first, filed on behalf of an Internet Service Provider, resulted in numerous court rulings finding parts of the NSL statute unconstitutional. As a result of a settlement agreement in August 2010, the ACLU's "John Doe" client Nicholas Merrill is finally able to publicly identify himself and his former company as the plaintiffs in the case. In the other cases, the ACLU succeeded in getting the FBI to lift NSL gag orders imposed on a group of Connecticut librarians and a digital library called Internet Archive.

American Academy of Religion v. Napolitano: A Case of Ideological Exclusion

The Cold War practice of routinely denying visas to foreign scholars, writers and artists who were thought to hold "leftist" political views was ended by an act of Congress in 1990. But its revival in the Bush administration led to an ACLU lawsuit in the case of Tariq Ramadan, contending the practice is unfair to both the individuals involved and to the First Amendment rights of Americans who want to meet with banned individuals.

Ramadan is a Swiss professor and leading Muslim scholar who has published 20 books and more than 700 articles on a variety of scholarly subjects. He was under contract to teach at Notre Dame in 2004 when the government barred him from re-entering the U.S. by invoking the "ideological exclusion" provision. Challenged in court, government attorneys failed to produce any evidence that Ramadan had endorsed terrorism, and eventually dropped those charges altogether. In a vindication for Ramadan and dozens of others barred from entry in the wake of 9/11, the U.S. Court of Appeals for the Second Circuit eventually ruled in his favor, recognizing that the First Amendment rights of U.S. organizations are at stake when foreign scholars, artists, politicians and others are excluded.

The John Adams Project: Seeking Fair Trials, Not Tribunals

In late 2006, Congress passed and President Bush signed the Military Commissions Act (MCA), which eliminated basic due process rights for detainees at Guantánamo Bay and elsewhere and allowed the government to continue to hold hundreds of prisoners without charges. The MCA also gave the president absolute power to designate enemy combatants, and to set his own definitions for torture.

In response, the ACLU formed "The John Adams Project", named for our nation's second president, who, as a young lawyer, defended the British soldiers charged with killing Americans in the Boston Massacre. Together with its partner the National Association of Criminal Defense Lawyers (NACDL), the ACLU is now participating in the defense of a group of "high-value detainees," who are charged, as were the British soldiers, with capital crimes. In doing so, the ACLU has noted that the perpetrators of the first World Trade Center bombing in 1993 were tried and convicted in our civilian court system, as were the perpetrators of the 1998 embassy bombings in Africa.

"The manner in which we seek justice against those accused of harming us will determine whether the United States will be seen at home and abroad as a nation of laws," said ACLU Executive Director Anthony D. Romero in announcing the project. "Because we are a great nation, true to our founders' vision, we must uphold our core values even in the toughest of times."

President Barack Obama appeared to agree: on his first day in office in 2009, he banned torture and ordered the eventual closing of Guantánamo Bay, and he soon eliminated the "enemy combatant" designation instituted by the Bush administration. But he reneged on his promise to eliminate military commissions. Congress made some cosmetic changes to the Military Commissions Act several months later, but kept many of the controversial Bush-era guidelines in place, ignoring the testimony of experienced military and civilian lawyers who called the system "broken beyond repair." The John Adams Project continues to assist detainees facing trials under this broken system and to advocate for due process, justice and the rule of law. Meanwhile, Guantánamo Bay remains open for business.

Beyond 9/11: Keeping America Safe and Free

In all of its post-9/11 litigation, the ACLU has emphasized that America cannot hold itself up as a moral beacon to the world if we violate the rule of law and engage in illegal spying, torture and secrecy. By "rendering" individuals to be tortured abroad, by conducting warrantless eavesdropping on Americans here at home, and by issuing secret demands for American's personal information, our government is violating America's cherished values of freedom and fairness.

Our democracy is built squarely on principles of free speech and due process of law. These great principles encourage each and every one of us to speak up in the firm conviction that by doing so, we strengthen our nation. We must not allow the war on terrorism – or any war, literal or figurative – to become an excuse for the government to erode the crucial checks and balances that sustain our democracy.


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