Rachel Goodman, Staff Attorney, ACLU Racial Justice Program & Sandra Park, Senior Staff Attorney, ACLU Women's Rights Project

It is no accident that much of the United States remains segregated. Decades of slavery, Jim Crow laws, discriminatory lending practices, and intentional policy choices at the federal, state, and local level — most of which were enacted within the last 80 years — helped make it so. 

The Fair Housing Act, passed in 1968, just a week after Martin Luther King, Jr. was assassinated, was meant to address the decades of discrimination that led to such segregation. The FHA made it illegal to discriminate against anyone buying or renting a house because of their race, color, religion, sex, or national origin (it’s since been amended to include family status and disability, too). But it also sought to replace segregation in America with “truly integrated and balanced living patterns” by requiring agencies to “affirmatively” further fair housing in all programs related to housing.

The FHA brought about a sea change with respect to individual housing discrimination — Americans today would be shocked to find an apartment listing that indicated Black people or women with children could not apply. But its promise of integrating neighborhoods has been left largely unfulfilled. As former Vice President Walter Mondale, who co-authored the legislation, pointed out recently in a New York Times op-ed, the FHA is the “most ignored” of the era’s civil rights laws.

It seems like Secretary Ben Carson, head of the Department of Housing and Urban Development, would like to keep it that way. In January, the agency suspended the only regulation to ever give the FHA real leverage in ending segregation. The move puts housing integration in serious jeopardy, so we’re challenging it in court.

Since it was enacted, successive presidential administrations largely ignored their affirmative obligations to create fair housing, allowing federal government dollars to flow uninterrupted to cities and towns that have policies in place that maintain segregation. Then, in 2015, the Obama administration finally began to seriously address this issue by putting in place a regulation called the Affirmatively Further Fair Housing (AFFH) Rule. The rule required cities and towns to create a plan to address segregation and discrimination and to lay out concrete goals for bringing fair housing and opportunity to members of all the groups protected by the FHA before receiving government money. Examples of these goals include building affordable housing in areas well-served by transit and prohibiting landlords from discriminating against people who use a government subsidy to pay part of their rent.

Learn more about the case

In the first few years it was in effect, it became clear that the AFFH process gave grantees an important new tool to attack the old problem of segregation. AFFH also proved valuable in addressing fair housing issues that were previously unnoticed. For example, the city of Ithaca, New York, used the AFFH process to prioritize addressing policies and practices that displace victims of domestic violence, sexual assault, and stalking. 

But in January, HUD announced that it would not require grantees to engage in the AFFH process until 2020 at the earliest (and, because of the way the process is timed, not until 2024 in most cases). This suspension means that HUD will continue to give out money without doing anything to check whether grantees are using it in ways that perpetuate segregation and undermine fair housing.

During his presidential campaign, Secretary Carson analogized the AFFH Rule to a “failed socialist experiment” and dismissed it as a government attempt to “legislate racial equality.” But the AFFH Rule is nothing of the sort: In fact, it gives local governments wide latitude to create locally appropriate solutions to housing issues that affect not only people of color, but also families with children, people with disabilities, and victims of crime, among others.

Not only is it unacceptable to delay the fulfillment of the FHA’s promise any longer — it’s also illegal. If HUD wanted to suspend the AFFH Rule, the law requires that it provide the public with notice and an opportunity to weigh in. And HUD would have to replace the AFFH Rule with something else that fulfills its statutory duty to affirmatively further fair housing. That’s why we filed suit today on behalf of the National Fair Housing Alliance, Texas Low Income Housing Information Service, and Texas Appleseed, three leading fair housing organizations whose work has been severely undermined by the suspension. Joining us as co-counsel are the law firm of Relman, Dane & Colfax; the Lawyers’ Committee for Civil Rights Under Law; the NAACP Legal Defense and Educational Fund; the Poverty & Race Research Action Council; and Public Citizen Litigation Group.

All the AFFH Rule requires is that communities seeking federal housing dollars take steps to counteract the history of government-sponsored segregation and to promote equal housing opportunities for all. As the Fair Housing Act turns 50 amid a persistently and illegally divided America, it’s the least we can do.

As we approach the confirmation hearing on Wednesday for Gina Haspel, Donald Trump’s pick to head the CIA, the agency continues to hide from the American public virtually all information about her role in torture and the destruction of evidence documenting it.

According to The Washington Post, Haspel even sought to withdraw her nomination out of concern about questions that she and the CIA have long avoided. Later reporting has suggested that Haspel’s withdrawal was motivated by concern that the White House wouldn’t fully back her in light of documents showing her unquestioning complicity in torture. As public scrutiny mounts, CNN reports that the Trump administration is already getting a Plan B nominee, Susan Gordon, the deputy director of national intelligence, ready if the Haspel nomination fails.

Although Haspel decided to move forward with the confirmation process after persuasion by White House officials, there is no indication that she has any intention of coming clean about her history helping lead the CIA’s Bush-era torture program. Instead, the CIA is doubling down on a propaganda campaign on Haspel’s behalf, pushing what several senators have called a “superficial narrative” that “does a great disservice to the American people” by denying them basic information about a person poised to assume one of the most powerful roles in the country. According to the Washington Post, “documents that haven’t been made public, show that Haspel was an enthusiastic supporter of what the CIA was doing.” Those are documents that the American people need to see.

We fully expect that Haspel will try to deflect attempts to get to the bottom of her record by relying on tired defenses that have no basis in law or history. Here is the truth behind some of the defenses we can expect to hear this week from torture defenders.

No one could have believed in good faith that the CIA’s torture program was legal.

Since the founding of the United States, our laws have unequivocally prohibited the use of torture and cruelty to extract information or inflict punishment. The U.S. has also signed the Convention Against Torture and the Geneva Conventions, both of which categorically prohibit the use of cruel treatment and torture, and has long had criminal statutes that prohibit conduct like assault and homicide. As courts have made clear, “it is beyond the power of even the President to declare such conduct lawful.”

Nonetheless, a common talking point among CIA torture apologists is that a secret Justice Department “torture memo” that opined that the CIA program was lawful was somehow a license to torture. It was not. All criminal laws still applied to CIA personnel operating in CIA-run facilities overseas. 

Anyone who personally witnessed the CIA torture program in action, as Haspel did, would know that it entailed the brutal abuse of helpless prisoners. Haspel knew that prisoners she was responsible for were kept for days chained to the ceiling, naked or in diapers, then slammed face-first into walls, subjected to near-drowning and relentless physical assault, deprived of food and sleep, forced into excruciating stress positions, and stuffed into coffin-like boxes. 

Contemporaneous CIA cables describe how the human beings subjected to the CIA program visibly trembled and shook, suffered “involuntary stomach  and  leg spasms,” became  “distressed to the level that he was unable  to  effectively  communicate,”  “cried,  begged,  and  pleaded; finally  becoming  hysterical.”  After receiving an interrogation plan for a prisoner who had been tortured under Haspel’s supervision, the CIA chief of interrogations sent an email to colleagues in which he wrote, "This is a train wreck [sic] waiting to happen," he wrote, "and I intend to get the hell off the train before it happens." No ordinary person could believe this was lawful.

Those involved with the torture program were desperate to cover up what they were doing.

The CIA’s efforts to hide Haspel’s involvement in torture are only the most recent example of the agency’s obsessive attempts to cover up the clearly unlawful program. In fact, the entire torture program was based on the CIA’s belief that it could keep torture secret forever. 

Several of the most chilling documents the ACLU has acquired in various lawsuits over the years show the extraordinary lengths the CIA was willing to travel to hide what it was doing. In a series of cables sent back and forth between CIA torturers at a “black site” in Thailand and agency leadership in Langley, Virginia, both sides agreed to cremate the body of a prisoner, should he die from torture. That would eliminate the evidence. But the torturers were worried that, if the prisoner survived, he might one day reveal what the CIA had done to him. So they demanded “reasonable assurances” that the prisoner “will remain in isolation and incommunicado for the remainder of his life.” CIA headquarters readily agreed that the prisoner “will never be placed in a situation where he has any significant contact with others.”

Haspel went on to oversee the interrogations at that black site. The detainee, Abu Zubaydah, remains at Guantánamo, largely “incommunicado.”

Many in the CIA were similarly worried when they discovered that there was videotaped evidence of the very torture that the CIA wanted to hide. Among those most concerned about the tapes were Haspel and her boss, Jose Rodriguez. Both were reportedly obsessed with getting rid of this evidence, and they actively lobbied CIA lawyers to sign off on destroying the tapes.

Eventually, the tapes were destroyed without securing permission. 

Destroying evidence is illegal, no matter how many CIA officials sign off on it.

Haspel’s main defense for her key role in destroying dozens of videotapes of CIA torture sessions is her claimed belief that her boss, Jose Rodriguez, would get permission from then-CIA Director Porter Goss. As it turned out, Rodriguez didn’t even attempt to secure this permission. But even if the CIA director had signed off on destroying evidence, that wouldn’t make Haspel’s actions legal. 

At the time that Haspel wrote a cable instructing that the videotapes be destroyed in an industrial shredder, multiple court orders required the CIA to preserve and turn over tapes of prisoner abuse. Congressional oversight committees were engaged in a formal inquiry and had informed the CIA that destroying the tapes “would reflect badly on the agency.” Nonetheless, the oversight committees were not informed that the CIA intended to destroy evidence of the program. 

Perhaps most importantly, destruction of evidence is a federal crime. And no one, not even the director of the CIA, can authorize subordinates to commit felonies — no matter who ultimately signs the permission slip.

The other person responsible for destroying the torture tapes, Jose Rodriguez, has admitted under oath that he wanted the tapes destroyed because they “would make the CIA look bad” and “almost destroy the clandestine service.”

%3Ciframe%20allow%3D%22autoplay%3B%20encrypted-media%22%20allowfullscreen%3D%22%22%20frameborder%3D%220%22%20height%3D%22315%22%20src%3D%22https%3A%2F%2Fwww.youtube.com%2Fembed%2FWl7HCCoSAWY%3Fautoplay%3D1%26version%3D3%22%20...

Privacy statement. This embed will serve content from youtube.com.

History doesn’t look kindly on those who claim to have been “just following orders,” as Haspel may claim and her defenders already have. As over 100 former generals and admirals have explained, “we did not accept the 'just following orders' justification after World War II, and we should not accept it now.” 

With that principle in mind, it’s worth remembering that not everyone in the CIA or the government went along with torture. As President Trump pushes forward a nominee who stood for torture, it’s worth thinking of those individuals within government who had the courage to stand up against it. Theirs are the moral standards that a CIA director nominee should embody.

In the wake of marijuana legalization, many states are looking for new ways to keep impaired drivers off the road. Unfortunately, some proposals would lead to problematic and possibly unconstitutional police practices. One such idea is warrantless roadside saliva testing. 

During a roadside saliva test, a police officer takes a saliva sample from a driver’s mouth and inserts the sample into a machine that at least theoretically can detect whether any amount of certain controlled substances — legal or illegal — is in the driver’s system. Yuck factor aside, there are several problems with this.

First, at best, these tests merely detect the presence of drugs in a person’s system. Unlike breathalyzers, they say nothing about actual impairment at the time of testing. As such, the use of saliva tests could result in the detention of someone who has any detectable amount of substance in their body — again, legal or illegal — even though this adds nothing to the determination of whether that person is an impaired driver.

Second, these tests pose serious due process and equal protection concerns. Roadside stops are considered seizures under the Fourth Amendment, and many factors contribute to whether or not a given seizure is legitimate. Because these warrantless tests will be positive for commonly prescribed medications, such as anti-depressants and pain management medicines, they will undoubtedly result in longer seizures and interrogations of drivers with disabilities who lawfully take the tested-for, doctor-prescribed medicines than those who do not.

This is the essence of disparate and unequal treatment — people with any presence of those particular drugs in their system are always going to be seized for a longer time, no matter their actual impairment. And from a racial justice standpoint, in a country where people of color are disproportionately stopped and searched by police, we can expect that they will also be subjected to this test more frequently than white drivers.

Saliva testing also raises substantial issues regarding personal dignity and privacy. A saliva test on the side of the road is much more invasive of privacy and bodily integrity than a breathalyzer test due to the physical removal of oral fluids and DNA. People’s privacy should not be invaded by a warrantless test that has no relation to actual impairment and road safety.

Finally, and perhaps most importantly, according to the National Highway Traffic Safety Administration, it has not yet been clearly established that saliva test devices are even accurate or reliable. States should not be relying on or investing money in technology that has not been absolutely proven to be accurate, especially when they jeopardize some of our most fundamental liberties.

Early indications are that at least some lawmakers are aware of the problems with roadside saliva testing. Senators in Vermont recently defeated a bill that would have allowed police to conduct these warrantless oral fluids tests. Other states, however, are beginning or are considering pilot programs of these tests on their roads and highways, including California, Michigan, Colorado, Kansas, and Illinois.

Improving road safety is an important goal, but these warrantless tests do nothing to advance that goal while creating multiple civil liberties concerns. Drivers should not have to sacrifice their constitutional and civil rights for a roadside saliva test that is invasive, ineffective, and unreliable. And let’s face it, it’s also pretty gross.