at liberty podcast

At Liberty is a weekly podcast that explores the most pressing civil rights and civil liberties questions of our time. Catch new episodes on Thursday at 9am ET.

episodes

- National Security

National Security

With the U.S Capitol in the back ground thousands of demonstrators march on Pennsylvania Avenue during the Women's March in Washington, Saturday, Oct. 2, 2021.

December 14, 2023

2023 in Review: The Latest on the Stories That Made Our Year

2023 is coming to a close, and we have weathered so much this year. At the ACLU, we continue to fight for civil rights and civil liberties across the country. We’re prying open every opportunity for abortion access and reproductive health care following the overturn of Roe, blocking trans health...

December 14, 2023

2023 in Review: The Latest on the Stories That Made Our Year

2023 is coming to a close, and we have weathered so much this year. At the ACLU, we continue to fight for civil rights and civil liberties across the country. We’re prying open every opportunity...

Echo King, an attorney from Orlando, Florida, stands in front of protesters who rallied in opposition to SB264 and HB1355 in front of the Capitol on Wednesday, April 19, 2023.

October 12, 2023

We're Suing Florida for Anti-Asian Housing Discrimination

This May, Gov. Ron DeSantis signed SB 264, a law that restricts Chinese nationals from acquiring property in the state of Florida under the guise of protecting national security. But the issue is actually pretty clear — Chinese people are not the Chinese government, and conflating the two is just...

October 12, 2023

We're Suing Florida for Anti-Asian Housing Discrimination

May 11, 2023

Banning TikTok is a Really Bad Idea

The social media platform TikTok has had a meteoric rise. The app has become a hub for educators, activists, and creatives to influence all aspects of culture. From launching dance trends, catapulting decades old books onto best sellers lists, to educating voters and organizing changemakers, TikTok has become key to how...

May 11, 2023

Banning TikTok is a Really Bad Idea

October 6, 2022

Is the Government Tracking Your Abortion?

If you live in a state where abortions have been banned since the overturn of Roe v. Wade, accessing abortion is a huge challenge. But unfortunately, access is not the only challenge -- pursuing an abortion without leaving a trace poses another huge hurdle. If you search for resources online,...

October 6, 2022

Is the Government Tracking Your Abortion?

November 4, 2021

Can the Government Wrongfully Spy on You and Get Away With It?

This week, we are bringing you a story about an upcoming Supreme Court case: FBI v. Fazaga, set to be argued on November 8th. This case will have big implications on the ability for private citizens who have been wrongfully surveilled by the U.S. government to seek redress for the...

November 4, 2021

Can the Government Wrongfully Spy on You and Get Away With It?

This week, we are bringing you a story about an upcoming Supreme Court case: FBI v. Fazaga, set to be argued on November 8th. This case will have big implications on the ability for private...

Suleiman Abdullah Salim and Mohamed Ahmed Ben Soud

September 9, 2021

Survivors of the CIA Torture Program Almost 20 Years Later

As we approach the 20-year mark since September 11th, we are following up with the clients and the attorney of one seminal ACLU lawsuit on the CIA’s post-9/11 torture program, a program that ended in 2010 but that continues to haunt its survivors and to stain the U.S.’s international human...

September 9, 2021

Survivors of the CIA Torture Program Almost 20 Years Later

April 1, 2021

Why New Domestic Terrorism Laws Won't End White Supremacy

From a Capitol insurrection to multiple mass shootings, recent violence is prompting an old debate: Does the U.S. need a domestic terrorism law? And if not, how do we quell this violence? Our guest today, Hina Shamsi, the Director of the National Security Project at the ACLU, says we don’t...

April 1, 2021

Why New Domestic Terrorism Laws Won't End White Supremacy

August 6, 2020

The Constitutional Crisis Wrought by Trump's Federal Troops

In the last month, we’ve seen the Trump administration deploy federal law enforcement officers to Portland, Oregon. Those agents have been documented using sharpshooters to maim protesters, sweeping people away in unmarked cars, and attacking journalists, legal observers, and medics with tear gas. The federal government just agreed to withdraw...

www.aclu.org/reinvest. And there are a variety of things that people can do to take action and to really help implement the things that are systemic, the brutality, the systemic racism, to take the steps to create structural change and reform. So the bottom line is that our affiliates and we are monitoring what happens with so-called Operation Legend, which is the operation that DOJ Justice Department announced to send additional federal forces to Chicago, Milwaukee, and other cities around the country. We’re going to fight back against any constitutional violations that result. We’re looking out to see what those agents do. But the thing to remember is that. They’re joining oftentimes local police forces that communities are already protesting. And so the concern is that the addition of these federal forces will further criminalize and over police, Black and brown communities. It will fuel additional incarceration. And it is exactly the opposite of what Black led protests and protesters are demanding. MOLLY [00:25:59] And are we concerned at all about the sort of bait and switch where there is the pretense that they are there for “law and order,” but actually turned to protesters? HINA [00:26:09] We are very deeply concerned about that, indeed. Because that is essentially what we saw in Portland. And it’s essentially what we saw in Washington, D.C. And it is the implementation of a political tactic by Donald Trump. And so we want to guard against further paramilitary forces being sent in to police protesters, something for which they are improperly being deployed and have been deployed with abuses that violate the constitution, in Portland. MOLLY [00:27:00] Well Hina, thank you so much for joining us today. We’re going to keep an eye out for whatever comes next. And we really appreciate your being with us. We know how busy you are. Thank you. HINA [00:27:10] It was my great pleasure to be on, thank you again for having me. MOLLY [00:27:13] Thank you OUTRO Thank you so much for listening. If you enjoyed this conversation, subscribe to At Liberty wherever you get your podcasts, and rate and review the show. We really appreciate the feedback. Until next week, stay strong. " outline-white-buttons="true" >

August 6, 2020

The Constitutional Crisis Wrought by Trump's Federal Troops

October 1, 2019

Edward Snowden's Permanent Record

In his new memoir, "Permanent Record," Edward Snowden tells the story of his evolution: A child of civil servants, he fell hard and fast for the internet of the 90s, ascended the intelligence community, and became one of the most famous whistleblowers in U.S. history. He joins ACLU Executive Director...

October 1, 2019

Edward Snowden's Permanent Record

September 11, 2019

How the War on Terror Corrupted America

Eighteen years after the attacks of September 11, 2001, a trial date was recently set for the men accused of plotting those attacks. But what has taken so long? And is a fair trial even possible? On this anniversary of 9/11, we're replaying an interview from last year with Hina...

www.aclu.org/911response. LEE ROWLAND This September 11th marked 17 years since the largest terror attack on U.S. soil and our nation’s political response to the tragedy. The War on Terror has dominated America’s foreign policy, military priorities, and human rights record ever since. Perhaps no place on earth is a better symbol of that war than the prison at Guantanamo Bay, Cuba. In 2009, President Obama signed an executive order trying to close it, and earlier this year, Trump signed an executive order to keep it open. 40 prisoners remain there today. What does the continued existence of Guantanamo say about the rule of law since 9/11? Here to help us answer that is Hina Shamsi, the director of the ACLU’s National Security Project. Hina has represented CIA torture victims and Guantanamo Bay detainees. And has, unfortunately, had a close-up view of what’s gone horribly wrong in America’s War on Terror. Hina, that downer of an intro notwithstanding, thank you for being here. HINA SHAMSI [00:02:05] My pleasure, despite the downer of an introduction. LEE So let’s start with Guantanamo um, I think it’s fair to say it’s faded a bit to the backburner of our political conversation. Why should people still care about Guantanamo and the 40 men that stay there? HINA You know, it’s–it’s a really good question, Lee. And let’s start with both what Guantanamo is and what it represents. So Guantanamo began back in 2002, when President Bush authorized the transfer there of multiple men. And it came to hold about 800 men — 779 men. And–and here’s sort of the underlying problem with it — and really the underlying problem with the entire nomenclature of quote-unquote “the War on Terror” — which is that people were transferred there under this sort of war paradigm, right, even though they were not necessarily captured in the context of an actual war. In the context of an actual war, a recognized war, nation-states are able to do what they don’t get to do in peacetime, like hold people without all of the indicia of due process that we require, right? LEE So a prisoner of war camp, for example, something we think of historically as temporary or onsite during a conflict. HINA [00:03:36] Exactly right. But even with prisoners of war, you have status determinations, right? Are they legitimately prisoners of war? Are they civilians who should not be detained? And all of those categories and frameworks — which are really important to distinguish between what you are possibly permitted to do in an exceptional context — the Bush administration tried to make the norm. And, so the path we went down with Guantanamo was indefinite detention without charge or trial, which should be exceptional, but applied to people to whom it should not be applied. Only five percent of the people who were actually held in Guantanamo were captured by the United States. LEE Of all of folks who have been in Guantanamo since its inception. HINA That’s right. Approximately 86 percent were handed over to the United States for bounties, right. And multiple people who were in Guantanamo were actually captured far outside of any armed conflict. That’s the danger of the global war paradigm. That, for example, is what happened to my client Mohamedou Slahi, who turned himself in voluntarily to Mauritanian authorities, entered the nightmare of extraordinary rendition and detention that was the Bush administration’s program, was tortured at the behest of the United States in Jordan, transferred to Bagram, transferred to Guantanamo where he was held for 14 years without charge or trial before he was ultimately released a couple of years ago. LEE You’ve used the phrase “war paradigm.” What does that mean? HINA So the laws of war legitimately apply when you’re actually having fighting that has intensity and duration. Because what we want, and what the United States helped set up, is for war to be an exceptional thing. Because when you make the war-based rule apply in ways and places where they don’t apply then you’re actually doing away with the kinds of constraints that help limit arbitrary government power to detain, to kill, to surveil — the kinds of things that should be exceptional and not the norm. LEE [00:06:07] It’s certainly my impression that a state of war is a cause for deference to the government in all kinds of ways that affect our civil rights, whether it is due process, or the government’s right to search and seizure, or even free speech, right? So whether or not the government invokes war really matters, right, to the breadth of its powers. HINA It really matters. And that’s why we thought it was so important to point out the record of Judge Kavanaugh on the D.C. Circuit. Judge Kavanaugh’s record gives the government extreme, excessive deference to the executive in determining what is war and deviations from the war, such that the executive becomes unchecked on issues of detention and other issues. LEE Can you give any examples of the kind of cases where he’s ruled in ways that would give you that concern? HINA Absolutely. So let me give you the example of one of our cases again. Amir Meshal, a U.S. citizen who was held through proxy detention by FBI agents in three different countries in the Horn of Africa over a period of four months. They abused him. They threatened him with death, with continuing detention, other abuses unless he confessed to crimes that he was adamant he didn’t commit, right. And so we filed a case on his behalf arguing that his Fourth and Fifth Amendment rights had been violated: Fourth Amendment rights against unlawful seizure, Fifth Amendment rights against detention without due process. [00:07:46] And the government argued that he had no remedy because the FBI agents had been acting abroad, extraterritorially in the context of a counterterrorism operation. Now what Judge Kavanaugh did was go out of his way to write a separate opinion called a concurrence that essentially said that the court shouldn’t step in in the context of any kind of counterterrorism operation abroad. And so that’s deference carried to an extreme. That’s— LEE So basically that the federal judiciary has no role to play– HINA Right. LEE In second guessing human rights or civil rights abuses that occur in the context of war. HINA That’s right. That was the outcome of Judge Kavanaugh’s reasoning. And that is a scary thing. LEE That’s very creepy. HINA But look at what the Bush administration did with respect to Guantanamo in taking that argument even further, and why Guantanamo in essence became and still is a laboratory for lawlessness and the consequences of lawlessness. And that’s torture. What corrupts Guantanamo right from the beginning, is torture, because the Bush administration claimed and carried out for really the first time in U.S. history — and let’s just pause here and say U.S. history has by no means been perfect, right — but this was really the first time that we embarked on a state-sanctioned policy of torture that reached its tentacles around the world and for people captured in different places. Torture was carried out by the CIA, torture was also carried out at Guantanamo by the military. LEE Is that why it’s located in Cuba? Was that location selected with the intent that we engage in these kind of abuses somewhere with less accountability? HINA [00:09:48] Absolutely. It was intended to be an island outside of law, and so part of the history of Guantanamo is the history of years of litigation to try and impose, on this regime. the rule of law. And that story is ongoing. Torture is like a cancer, and it spreads and it corrupts institutions we care about, and the consequences of torture continue to corrupt in the military commissions today. LEE Let’s talk about the consequences of torture. Of the hundreds of detainees who have been in Guantanamo over its existence, have a significant number of them been tortured either before or during incarceration there at the camp? HINA Absolutely. So approximately 26 detainees were held in CIA custody and–and tortured by the CIA before they were transferred, and then multiple more were tortured in Guantanamo while they were there. And that story is still a particularly American story. It’s also the story of why the commissions are failing. LEE When were the military commissions first set up? HINA The military commissions were set up under the Bush administration ostensibly to prosecute, you know, the worst of the worst, these terrorism suspects, by bringing in evidence of torture, confessions obtained through torture, against the very people who had been tortured with rules that were not only set up to do that but also deviated in hugely important ways from rules in the federal courts, for example, that are set up to achieve a fair process and a fair outcome. LEE So how many men– and I’m assuming they’re all men? HINA That’s right. LEE –Have been tried during the military commissions process? HINA So there have been eight convictions in the military commissions process. You know, three of them have been reversed. LEE Wow. HINA [00:11:59] One of them was uncontested. There are currently 10 people who are still going through the military commissions process. LEE So these military commissions are still going on almost 15 years after they began. Who is still caught up in them today, and what’s going on in these interminable trials? HINA Among the people who are being prosecuted are the people accused of the 9/11 attacks. And– LEE Including Khalid Sheikh Mohammed? HINA Including Khalid Sheikh Mohammed. So the week of 9/11 was the 31st pretrial hearing in the military commissions prosecution of the people accused of the 9/11 attack. LEE And a pretrial hearing is basically where the lawyers go in and work out the logistics for an upcoming trial? HINA Well, the pretrial hearing for the Guantanamo military commissions is many, many things. They are fights over fairness of process, over fundamental things like what crimes get tried in these proceedings. They are fights over access to evidence that the government has against the people who have been accused. And we’ve got torture, again, because the government is reluctant to hand over information that would allow the story of the full torture program either to come out publicly or to be conveyed to the defendants’ attorneys in the first place. LEE Do the defendants’ attorneys have enough information to meaningfully defend their clients of the crimes they’re accused of? HINA They don’t. And this is something that, when I talk about it — well I don’t, I don’t get invited to many parties anymore when I talk about these things, but, when I talk about it — LEE You’re safe here. We’ll invite you back. HINA [00:13:52] Thank you, thank you. But, you know, people ask, well, why is this so important, you’ve got people who’ve been accused of these terrible crimes. And, you know, one of the most formative experiences for me in law school was working in a death penalty clinic. And what my mentor and professor taught me then, which I still continue to apply, is that a system is only as fair and reliable and trustworthy as it treats fairly and reliably its worst offenders. And that’s what we’re talking about here. These are really the most important terrorism trials in the history of our country. And so we, I would expect, need and want them to be fair in process and in outcome. So, you know, when we’re talking about 17 years and how long it’s taken, that’s the fault of the government. If you’re going to start out with a process that began intended to convict people based on torture, then we really are mired in a system that is not going to guarantee a fair outcome that we can stand behind as a country. LEE So these commissions, among the other issues in the pretrial hearings, are currently stalled because the judge’s last ruling banned the use of some of this evidence by prosecutors. Is that right? What happens next? HINA Yeah. So they’re actually not stalled. And the ruling was fairly limited but also very telling, because what the judge said is that statements made to FBI clean teams — this was an entire process of after the torture ostensibly stopped, this newfangled “clean team” mechanism was instituted to come in and interrogate them and get confessions and– LEE And these confessions would have been at least theoretically washed of the sins of prior torture. That was the idea of the clean team? HINA [00:16:01] That was the theory of the clean teams and what the defense attorneys argued, was actually the impact of torture is ongoing, and there is good scientific evidence of that, but also for these purposes, because of the constraints that the government has put on the defense in terms of what they can investigate and what access they have to information about the torture program, the judge agreed that the defense team wouldn’t be able to effectively challenge these clean team statements. LEE These clean teams are something a decade or 15 years ago, right, at this point? HINA A little bit less than that, but yeah. LEE Okay. Why is justice so slow in these cases? HINA What we want is not necessarily a speedy outcome but a just process and a fair outcome. And that’s partly why it’s taking so long, because at bottom everything that we’ve been talking about here, Lee, these are a novel system. They deviate from accepted rules of both the military justice system and the federal criminal justice system. And so, the one thing that I think you can have guaranteed is that those rules are going to be contested. President Obama and Attorney General Holder actually wanted these cases tried in the federal criminal justice system and that didn’t happen. It was a combination of, quite frankly, the executive branch’s failure to prepare New York political leaders for transferring people here and the triumph of the politics of fear here in New York, and elsewhere, over a system of justice that we might be able to stand behind. LEE What other consequences of the War on Terror are you seeing reverberate through society? HINA [00:17:59] Oh wow, that’s a good and complex question because I think, on the one hand, you have a generation growing up for whom the fact that this country carried out torture is an accepted thing, right? Not an exceptional thing, not a shameful thing. But this is — this happened, and we’ve actually not as a country fully grappled with accountability for torture. Largely this country’s record has been impunity for torture. And so that plays out in more corruption and in more wrongheaded policies and outcomes. Let me just take one example: so the head of the CIA right now, Gina Haspel. Unbelievable to me and outrageous to me that the head of the CIA is a woman who was one of the key actors in the CIA torture program and who participated in the cover-up and destruction of torture evidence. If we had had accountability, we would not be sending this signal to the world and to existing generations that that is okay by elevating this woman to the position that she now has. LEE Does it surprise you when it comes to Trump? He ran in part on a platform of being soft, if not enthusiastic, about torture and making sure Guantanamo stayed open, right? Wasn’t she kind of a natural pick for somebody like that? HINA [00:19:41] Yeah. No, it doesn’t surprise me from Trump, and I’m not sure how much I’d say I’m surprised. I am still angry and outraged that Obama administration officials promoted Gina Haspel’s position, and I’m not sure that she would have been confirmed if Bush and Obama administration officials hadn’t, you know, pressed for her with members of Congress. And I’m angry and outraged that Congress actually approved this nomination. It was a close vote. LEE Recently, though, I’ve seen folks on the left lionize people like James Clapper or John Brennan. And I’m wondering if you think the military industrial complex kind of rises above party. HINA Yeah, you know, military industrial complex, it gets batted around and derided. But remember it comes, if I’m not mistaken, from Eisenhower who warned against it. LEE As he left office. HINA As he left office. LEE He said this will be the death of us all if we’re not careful. HINA Right. And so, “As he left office,” is also the important part here. LEE That’s when he found his courage to stand up to that complex. HINA Yeah. And you look at the courage that is being demonstrated and valued by many on the left of intelligence and military officials who helped promote some of the most rights-violating national security policies of the last 17 years. And so to my mind, the perversity of this is that the resistance, whatever it is, is an inch deep, if it entrenches the views and values of the people who promoted, defended torture like John Brennan, or warrantless surveillance and lying to Congress like James Clapper, or falsehoods to Congress about the torture program like Mike Hayden. [00:21:52] You know, these and others are now promoted as heroes and courageous heroes because they are critics of the Trump administration, and–and when people look at that and think about that, a couple of things: One is, these are the very people who have promoted policies and institutions that from a national security perspective are allowing Trump to do what he does today. So on the one hand, they’ve promoted them. On the other hand, they turn around, and they criticize Trump. They’re not criticizing Trump for these rights violations, right? They’re criticizing Trump for violating norms. You know when we think about coming out of these Trump years — and God knows we all want to come out of these Trump years whole, or as whole as possible, given all the damage and violence that has been done — what they really have shown is that it’s not the norms really that are going to protect us. It’s institutions that put meaningful limits when the executive branch commits massive rights violations. And the story of the last 17 years in national security is a story of the executive branch committing massive rights violations. And so we are not going to come out of this whole if we promote as heroes the very people who helped perpetuate or advance those rights violations. LEE National security often feels inherently far away and abstract for people. Are there ways in which we’ve warped our norms in the name of the war on terror that have affected civil rights here at home in America? HINA [00:23:45] It’s such an important question and I, you know, it’s part of, it’s part of what informs my day to day, quite frankly. You know, one of our clients in our lawsuit against the NYPD for its surveillance of Muslims tweeted last week that every day for him and people like him was September 12, 2001. And what he meant by that was that even though there was a period of coming together, and, you know, anger and outrage and grief, for so many communities in this country, for the minority communities in this country, this was a story that is continuing of backlash, of discrimination on the grounds of national security, of being seen through a security lens as being on the verge of carrying out wrongs that they are absolutely not responsible for, of being watch-listed, of being surveilled, of being targeted and investigated. So this is a story that applies to communities of people of South Asian, Arab American, Muslim origins, Black Americans, those who are at the intersection of a lot of those categories and communities. So for America’s minority communities, the harms of the National Security State are an everyday, and ongoing occurrence. LEE What institutions are our best hope? You know, what do you think is our best bet for ending this forever war and putting a stop to the ways in which it’s warped our values? HINA What should be the best tools: Congress and the courts. But you get tempted sometimes to say, “Pox on both your houses, folks,” because Congress has not exercised its role as a limit or its oversight function. The courts have a pretty shameful record in terms of putting limits on rights violations, which is not to say they haven’t done it. There have been some really important cases, you know, finding habeas corpus for Guantanamo detainees, other–other cases, so I don’t want to sell that short. [00:26:06] But I think it’s also got to be all of us. It’s got to be all of us educating ourselves — and I’m thinking especially of that generation that, you know, grew up with these norms and rights violations as a normal thing — about why they’re wrong, about voting for people who have a pro-civil and -human rights agenda, about bringing that back into the mainstream. And so when I think about hope, you know, my folks, my team and I, we’re still going to continue to litigate because we still have hope. We still have belief in those systems. But really where a lot of that hope comes from is our–our fellow human beings, our fellow Americans, the people who have the fortune of having the right to vote exercising it in the ways that will achieve long-lasting change. LEE Hina, thank you so much for being in the studio today. HINA My pleasure. Thank you for having me. EMERSON Thanks very much for listening. If you enjoy At Liberty, please be sure to rate us. The more ratings we have, the easier it is for people to find the show. We really appreciate the feedback. ‘Til next week, peace. " outline-white-buttons="true" >

September 11, 2019

How the War on Terror Corrupted America

Eighteen years after the attacks of September 11, 2001, a trial date was recently set for the men accused of plotting those attacks. But what has taken so long? And is a fair trial even...