April, 21 2009, 01:51pm EDT

For Immediate Release
Contact:
Laurie Gindin Beacham, ACLU, (212) 549-2666; media@aclu.org          Â
Interrogation Memos Provide Further Reason to Give Torture Victims Day in Court, Says ACLU
Group Submits Letter in Extraordinary Rendition Case Against Boeing Subsidiary
NEW YORK
The
American Civil Liberties Union today alerted a California federal
appellate court that the government's assertion of the "state secrets"
privilege in an extraordinary rendition case has even less merit given
last week's Justice Department release of four "torture memos."
In a letter sent to the U.S. Court
of Appeals for the Ninth Circuit today, the ACLU asserted that the
recently released memos graphically describe several illegal
interrogation techniques that were used by the CIA against some of the
plaintiffs in its lawsuit against Boeing subsidiary Jeppesen DataPlan,
Inc. for its role in the CIA's extraordinary rendition program. The
government intervened and halted that case asserting "state secrets,"
relying upon former CIA Director Michael Hayden's declaration that
disclosing specific interrogation techniques "would degrade the
effectiveness of the United States' intelligence gathering activities
by ... providing terrorists information about interrogation methods."
"That rationale no longer exists,
because the methods are now public, and because they have been
expressly prohibited," said Ben Wizner, ACLU National Security Project
attorney, in today's letter. "A program that does not exist cannot be
'degraded' by disclosures of information that is already public."
The case, Mohamed et al. v. Jeppesen,
is now on appeal. Because of the government's overbroad and improper
use of the state secrets privilege, no CIA torture victim yet has had
his day in court.
"The CIA and its contractors have
used false claims of secrecy to avoid any judicial scrutiny for grave
human rights violations," said Wizner. "The notion that the
extraordinary rendition program could be discussed everywhere in the
world except in a U.S. courtroom has always been absurd. Now that the
CIA's detention and torture program has been publicly confirmed and
officially terminated, there is no basis whatsoever for denying its
victims their day in court."
A full copy of the letter is shown below and available online at: www.aclu.org/safefree/torture/39407res20090421.html
More information on the ACLU's extraordinary rendition case against Jeppesen DataPlan is available online at: www.aclu.org/safefree/torture/29921res20070530.html
-------------------------------------------------------------------
April 21, 2009
Molly Dwyer, Clerk of Court
Office of the Clerk
U.S. Court of Appeals for the Ninth Circuit
P.O. Box 193939
San Francisco, CA 94119-3939
Re: Mohamed et al v. Jeppesen Dataplan, Inc., No. 08-15693 (argued February 9, 2009)
Dear Ms. Dwyer:
Plaintiffs-Appellants submit
this letter pursuant to Federal Rule of Appellate Procedure 28(j), to
advise the Court of supplemental authority that bears directly on the
issues on appeal.
On April 16, 2009, President
Obama declassified four legal memoranda prepared by the Department of
Justice's Office of Legal Counsel that purported to authorize the CIA's
use of abusive interrogation techniques. (The four memos are available
at www.aclu.org/olcmemos.)
The memos confirm the CIA's use of a range of coercive techniques,
including prolonged sleep deprivation, forced nudity, dietary
manipulation, and stress positions, as well as specific techniques used
to set the "initial conditions" for interrogation through preparation
and flight to CIA facilities. These techniques were employed by U.S.
personnel against some of the plaintiffs in this litigation.
The government's invocation of
the state secrets privilege in this case is predicated on an October
18, 2007 declaration by former CIA Director Michael Hayden. General
Hayden's declaration asserts that, "[w]hile the President [Bush]
acknowledged the existence of
the CIA terrorist detention and interrogation program, the details of
the program remain highly classified." Hayden Decl. P 9 n.4, ER 738.
General Hayden insisted that disclosing specific interrogation
techniques "would degrade the effectiveness of the United States'
intelligence gathering activities by, for example, providing terrorists
information about interrogation methods that would assist their
interrogation resistance programs." Id. at P 24, ER 748.
That rationale no longer exists,
because the methods are now public, and because they have been
expressly prohibited. As President Obama explained upon
declassification of the memos:
First, the interrogation
techniques described in these memos have already been widely reported.
Second, the previous Administration publicly acknowledged portions of
the program - and some of the practices - associated with these memos.
Third, I have already ended the techniques described in the memos
through an Executive Order. Therefore, withholding these memos would
only serve to deny facts that have been in the public domain for some
time.
Statement of President Barack Obama on Release of OLC Memos, April 16, 2009, available at https://www.whitehouse.gov/the_press_office/Statement-of-President-Barack-Obama-on-Release-of-OLC-Memos/.
Indeed, the Executive Order issued by President Obama not only
prohibited abusive interrogation techniques; it also directed that the
"CIA shall close as expeditiously as possible any detention facilities
that it currently operates and shall not operate any such detention
facility in the future." Exec. Ord. 13,491, 74 Fed. Reg. 4893 (Jan 22,
2009). A program that does not exist cannot be "degraded" by
disclosures of information that is already public.
Respectfully submitted,
Ben Wizner
Counsel for Plaintiffs-Appellants
cc: Douglas Letter
Michael P. Abate
U.S. Department of Justice
Civil Division, Appellate Staff
950 Pennsylvania Ave., NW, Room 7318
Washington, DC 20530
Daniel P. Collins
Munger, Tolles & Olson LLP
355 South Grand Ave., 35th Floor
Los Angeles, CA 90071-1560
The American Civil Liberties Union was founded in 1920 and is our nation's guardian of liberty. The ACLU works in the courts, legislatures and communities to defend and preserve the individual rights and liberties guaranteed to all people in this country by the Constitution and laws of the United States.
(212) 549-2666LATEST NEWS
'Nonsense!': Jamie Raskin Rips Republicans Over Unending January 6 Lies
"America, we cannot let McCarthy and Carlson become the Orwellian editors of our past or the authoritarian authors of our future," exhorted the Maryland Democrat.
Mar 08, 2023
As right-wing politicians and pundits continue to peddle lies and conspiracies related to the January 6, 2021 attack on the U.S. Capitol by supporters of then-President Donald Trump, Democratic Maryland Congressman Jamie Raskin on Wednesday delivered a passionate rebuttal of Republicans' "nonsense."
Speaking on the House floor, Raskin asserted that "it all starts" with "Donald Trump's 'Big Lie'" that the 2020 presidential election was stolen.
He continued: "They say, 'Who knows, maybe he won, maybe he didn't. You say Joe Biden's president, we say Donald Trump's president.' Nonsense!"
"Sixty federal and state courts rejected every claim of electoral fraud and corruption that they put forward. Sixty," Raskin—who was the lead manager for Trump's historic second impeachment—reminded listeners. "They don't have a single court that ever ruled in their favor. Donald Trump lost that election by more than seven million votes, 306-232 in the Electoral College."
"So then... their Big Lie has to stretch all the way over January 6," Raskin said. "We have to disbelieve the evidence of our own eyes and our own ears. We saw them come and descend upon this chamber, this Congress, wounding and injuring 150 of our police officers, breaking people's noses, breaking people's fingers, putting people in the hospital, and already they're back on the news with big lies saying, 'No, no, no, it was a tourist visit.'"
Referring to the Fox News opinion host and the Republican House speaker, Raskin tweeted Wednesday that "Tucker Carlson's assault on the truth about January 6 is unconscionable, but more scandalous yet is Kevin McCarthy's central role in its design. America, we cannot let McCarthy and Carlson become the Orwellian editors of our past or the authoritarian authors of our future.
On Monday evening, Carlson—who according to legal documents said he "passionately hates" Trump even as he publicly amplified the ex-president's lies—dubiously dismissed the Capitol attack as "mostly peaceful chaos."
Carlson's characterization was roundly rejected even by numerous Republican senators including Thom Tillis of North Carolina, who called the false narrative "bullshit."
Keep ReadingShow Less
Free Press Advocates Say FTC Has No Business Probing Journalist Interactions With Twitter
"Anyone who cares about the free press should be concerned by the FTC's demand that Twitter identify journalists who have received information that might embarrass the administration," said one critic.
Mar 08, 2023
Press freedom defenders on Wednesday expressed outrage after it was revealed that the Federal Trade Commission, as part of its investigation into Twitter's data privacy practices, demanded that the social media giant "identify all journalists" given access to company records, including in relation to owner Elon Musk's dissemination of the so-called "Twitter Files" purporting to expose censorship on the platform.
"Anyone who cares about the free press should be concerned by the FTC's demand that Twitter identify journalists who have received information that might embarrass the [Biden] administration, regardless of what they think of Elon Musk or Twitter," Freedom of the Press Foundation (FPF) advocacy director Seth Stern said in a statement.
According to FPF: "Government-compelled identification of journalists is dangerous on its own and enables further surveillance of those identified. Administrations from both political parties have overreached to spy on journalists—especially journalists investigating those in power."
"The Department of Justice has adopted policies against surveilling journalists," the advocacy group noted, "but other agencies like the FTC have not."
The Wall Street Journalreported Tuesday that in addition to the names of journalists granted access to Twitter records, the FTC also sought internal communications related to Musk as well as information regarding layoffs, which the agency said could undermine the corporation's capacity to protect users, and the launch of the Twitter Blue subscription service.
FTC spokesperson Douglas Farrar told the newspaper that the agency is "conducting a rigorous investigation into Twitter's compliance with a consent order that came into effect long before Mr. Musk purchased the company."
Farrar explained Wednesday on social media that Twitter in 2011 "agreed to a 20-year consent order over its data security practices and how it uses your private information."
"In 2022, the FTC charged Twitter with violating the 2011 order for misusing personal information. The company then paid a $150 million penalty and entered a new consent order," he continued. "Besides the penalty, the FTC added further provisions to protect consumers' sensitive data. This order was issued in May of 2022," several months before Musk's acquisition of the company was finalized.
"The FTC should not have to violate the privacy of journalists to protect the privacy of Twitter users."
Farrar added that the 12 demand letters the FTC has sent to Twitter since Musk took over in late October "are nonpublic, but cherry-picked portions of some have recently been made public."
This happened after the Republican-led House Judiciary Committee's Select Subcommittee on the Weaponization of the Federal Government published excerpts of the letters in an interim staff report about the FTC's Twitter probe.
As part of its investigation, the FTC on December 13 "asked about Twitter's decision to give journalists access to internal company communications, a project Mr. Musk has dubbed the 'Twitter Files' and that he says sheds light on controversial decisions by previous management," the Journal reported.
According to the newspaper: "The agency asked Twitter to describe the 'nature of access granted each person' and how allowing that access 'is consistent with your privacy and information security obligations under the order.' It asked if Twitter conducted background checks on the journalists, and whether the journalists could access Twitter users' personal messages."
Journalist Matt Taibbi—whose December 2 thread on Twitter's 2020 decision to suppress the Hunter Biden laptop story and subsequent reporting have put him at the center of the "Twitter Files" saga—tweeted Tuesday: "Which journalists a company or its executives talks to is not remotely the government's business. This is an insane overreach."
In response, Matt Stoller of the American Economic Liberties Project, an anti-monopoly think tank, wrote that "the FTC is seeing whether Twitter is violating its consent decree on privacy."
Farrar doubled down on that claim Wednesday, writing: "FTC investigations are straightforward and nonpolitical. They are to ensure that companies are following the law, including protecting people's privacy. The consent order the FTC has with Twitter isn't about Musk's acquisition of the company or their content moderation policies. This isn't about free speech, it's about the FTC doing its job to protect Americans' privacy."
Stern, for his part, was unconvinced by Farrar and Stoller's attempts to justify the FTC's actions as an exercise in protecting consumers' data.
"The FTC," said Stern, "should not have to violate the privacy of journalists to protect the privacy of Twitter users."
"It's especially disturbing," he continued, "that the demand could enable future efforts to obtain the journalists' newsgathering materials."
The FTC's actions underscore why Americans of all political persuasions "should support passing the PRESS Act," Stern added. "It's the only way to ensure that all administrations, and all government agencies, are prohibited from surveilling or retaliating against journalists."
Keep ReadingShow Less
'Shocking': FBI Director Admits Agency Purchased Geolocation Data of Americans
"Congress must fix this before considering any reauthorization of Section 702 of the Foreign Intelligence Surveillance Act this year," said one advocate.
Mar 08, 2023
Privacy advocates on Wednesday said testimony from FBI Director Christopher Wray at a U.S. Senate Select Intelligence Committee hearing offers the latest evidence that Congress must take action to keep the government from performing mass surveillance on people across the United States, as Wray admitted the bureau has purchased cellphone geolocation data from companies.
Sen. Ron Wyden (D-Ore.) asked Wray at a hearing about national security threats whether the FBI purchases "U.S. phone geolocation information," showing the location of users.
Wray said the bureau does not currently make such purchases, but acknowledged for the first time that it "previously, as in the past, purchased some such information for a specific national security pilot project," drawing on data "derived from internet advertising."
He said the project has been inactive "for some time" but said he could only provide more information about it and the past purchase of geolocation data in a closed session with senators, adding that the FBI currently accesses "so-called ad tech location data" through "a court-authorized process."
"This is a policy decision that affects the privacy of every single person in the United States."
"I think its a very important privacy issue that [geolocation data purchases] not take place," said Wyden, an outspoken advocate for privacy rights.
Grassroots social welfare organization Demand Progress called Wray's admission "both shocking and further proof of the need for Congress to take immediate action to rein in mass surveillance."
"This is a policy decision that affects the privacy of every single person in the United States," said Sean Vitka, the group's policy counsel. "We should have the right to decide when and how our personal information is shared, but instead intelligence agencies continue to obstruct any accountability or transparency around this surveillance."
The revelation came as Section 702 of the Foreign Intelligence Surveillance Act (FISA) is scheduled to expire at the end of the year and as Congress is expected to soon begin debating its reauthorization.
As written, the provision allows the U.S. government to conduct targeted surveillance of people in foreign countries, but intelligence agencies have also used the law to collect data on Americans.
"Congress must fix this before considering any reauthorization of Section 702 of the Foreign Intelligence Surveillance Act this year," said Vitka of Wray's admission.
Vitka and Fight for the Future director Evan Greer were among the critics who demanded to know "who told [Wray] buying Americans' location info from data brokers would be legal?"
\u201cThe @FBI bought Americans\u2019 location info without a court order. This is enormous, was illegal, and has countless effects on the #FISAReform debate this year. What it means for what remains of Americans\u2019 privacy is horrifying.\u201d— Sean Vitka (@Sean Vitka) 1678293086
Privacy advocates have long warned that the Supreme Court ruling in the 2018 case Carpenter v. United States, in which the court decided government agencies that accessed location data without a warrant were violating the Fourth Amendment, contains a loophole allowing the government to purchase data that it can't obtain legally.
"The public," Vitka told Wired, "needs to know who gave the go-ahead for this purchase, why, and what other agencies have done or are trying to do the same."
Keep ReadingShow Less
Most Popular
SUPPORT OUR WORK.
We are independent, non-profit, advertising-free and 100%
reader supported.
reader supported.