Hina Shamsi, Director, ACLU National Security Project

Twenty years have passed since the first detainees arrived in Guantánamo Bay, making it the longest-standing war prison in U.S. history. Since 2002, 779 Muslim men and boys have been held at Guantánamo, nearly all of them without charge or trial. Today, 39 men remain indefinitely detained there, and 27 of them have never even been charged with any crime. Fourteen of those 27 have been cleared for transfer or release, some for years. Many of the remaining men are torture survivors; the CIA formerly disappeared some of them at “black sites” before our government sent them to Guantánamo. All of the prisoners have been exposed to the physical and psychological trauma associated with prolonged indefinite detention.

Around the world, Guantánamo is a symbol of racial and religious injustice, abuse, and disregard for the rule of law. Our government’s embrace of systematic torture shattered lives, shredded this country’s reputation in the world, and compromised national security. To this day, it has refused to release the full details of the torture program or to provide justice and redress for all the many victims.

As we mark this 20th anniversary, it is worth pausing to reflect on the fact that all the teenagers and many young adults alive today have never known a United States without the stain of Guantánamo. They’ve seen three presidents pledge to close the prison without following through on that promise. Guantánamo is now embedded not only in our conscience, but in American culture, as recent critically-acclaimed films about torture and its impact, like “The Report” and “The Mauritanian,” show. Yet too many think Guantánamo is in our past or even that amends for abuses have been made, as a Jeopardy question and response last year showed. In response to the clue, “In 2015 Congress authorized payments of $4.44 million to each of these people, $10,000 for each day of their captivity,” a Jeopardy! contestant wrongly answered “Guantánamo Bay prisoners.” There has been no such redress, and this shameful chapter of our history is still being written.

President George W. Bush transferred over 500 prisoners out of Guantánamo. President Barack Obama transferred approximately 200 men, and said he would shut the prison down, but failed. President Donald Trump reversed course and kept the prison open. Now it’s up to President Joe Biden to fulfill his pledge to finally close Guantánamo.

SIGN THE PETITION

Last year, over 110 groups, which include 9/11 family members, urged President Biden to take concrete action. Their call joined a chorus that has ranged from the military to medical professionals, international jurists to human rights organizations and activists, to the late Sen. John McCain. Former government officials who support closure include five defense secretaries, eight secretaries of state, six national security advisors, five chairmen of the Joint Chiefs of Staff, and dozens of retired generals and admirals.

At a recent Senate Judiciary Committee hearing, Colleen Kelly, who lost her brother in the 9/11 attacks, told Congress that she hopes for “a resolution to the 9/11 Military Commission that provides answers to their questions, accountability for unlawful acts, justice too long denied, and a path to closing Guantánamo. Perhaps then, this long-festering, very personal yet collective national wound can truly begin to heal.” At the same hearing, Marine Corps Brigadier General John Baker, the Guantánamo military commissions’ chief defense counsel emphasized, “It is too late in the process for the current military commissions to do justice for anyone. The best that can be hoped for at this point, more than 20 years after the crimes were committed, is to bring this sordid chapter of American history to an end. And that end can only come through a negotiated resolution of the cases.”

The path forward is clear and achievable. President Biden has all the authority he needs to close Guantánamo in a way that reckons withs the harm done to men who have been tortured and imprisoned without charge or fair trials for two decades, while providing a measure of justice and resolution for victims’ family members. His administration can start by appointing a top level official who is specifically tasked with closing Guantánamo and is empowered to do so. It can transfer detainees who have not been, nor will be, charged with a crime to other countries where their rights will be respected and they can receive medical care and support services. Finally, if the government has enough evidence that is untainted by torture to prosecute prisoners — including those facing the death penalty — it should pursue plea agreements to finally resolve cases.

Twenty years ago, now- retired Marine Corps Major General Michael Lehnert was tasked with building the first cells at Guantánamo and setting up the prison. He told Congress at the Senate Judiciary Committee hearing that the failure to close Guantánamo is now a painful reflection of this nation’s values in the last 20 years: “Who we are cannot be separated from what we do.”

The prisoners at Guantanamo — and indeed our nation — have lived with the legal and moral stain that the prison represents for far too long. We can’t look away from what our country has done. We need to face it and shut it down.

By Michael Tan, Deputy Director, ACLU Immigrants’ Rights Project

On January 11, the U.S. Supreme Court will hear arguments in Garland v. Gonzalez, the latest in a series of cases the court has taken on immigration detention. The case presents a basic question: whether the federal government can lock immigrants up, for months or even years, without a hearing to determine if their detention is justified. And the Biden administration is decidedly on the wrong side of this fight.

The plaintiffs in Gonzalez are all people who were previously deported from the U.S., but came back because they faced persecution or torture in their countries of origin. One plaintiff, Arturo Martinez, was kidnapped by police officers after being deported to Mexico, tortured, and held for ransom. Another, Eduardo Gutierrez, was tortured by gang members because of his sexual orientation.

Arturo, Eduardo, and others like them were all screened by an asylum officer upon their return to the U.S.; all were found to have a bona fide claim to protection, and all were referred for legal proceedings to decide their protection claims. Under the immigration laws, they were legally entitled to remain in the country while their cases were being heard. But because of court backlogs, cases can take years to conclude, meaning that people are routinely detained for extremely long periods of time.

The issue before the Supreme Court is what process people like Arturo and Eduardo are entitled to, in order to determine if they should stay locked up or can be safely released to their families and communities. In the preceding decision, the Ninth Circuit interpreted the detention laws to require a bond hearing before an immigration judge after six months, based on its recognition that prolonged detention without a hearing raises serious due process concerns. This follows from long standing Supreme Court precedent recognizing that when it comes to civil detention, the touchstone for due process is a hearing before a neutral decision-maker to decide if someone’s imprisonment is justified. These protections are all the more critical when the government locks people up for months or years.

Yet despite its pledge to deliver a fair and humane immigration system, the Biden administration does not see things the same way. Instead, the Department of Justice argues that no hearings are required here because immigrants get paper “file reviews,” done solely by ICE — the jailer. But we know from experience that an ICE “file review” is no substitute for a hearing before a judge. Instead, ICE uses these reviews to rubber stamp detention for months or years, based on arbitrary reasons, or no reasons at all.

Even worse, denying people bond hearings can have life-threatening consequences. ICE’s record of abuse, neglect, and death makes clear that detention is dangerous — a fact that has only become clearer during the COVID-19 pandemic. Ultimately, because detention cannot be made safe and humane, ICE must shut down its mass detention machine. But in the meantime, the government must at least provide due process to ensure that people are given a meaningful chance at release.

Beyond the denial of bond hearings, there is another way in which the Biden administration has picked the wrong side of this fight. The administration argues that a provision of the immigration laws prevents federal courts from entering a standard form of relief in civil rights cases — a class-wide injunction — in cases challenging the government’s detention and deportation practices. Practically, this is a systemic attack on immigrants’ rights.

The overwhelming majority of detained immigrants do not have lawyers, are unfamiliar with U.S. law, and often lack English language proficiency. These barriers to entry mean that most immigrants have no idea what legal claims they may have when their rights are abused, much less the resources to file individual lawsuits. Class actions and class-wide injunctions have thus been essential tools for advocates and courts to ensure that the government follows the law in its treatment of immigrants — tools that the Biden administration now wants eliminated. An administration that’s committed to fairness has no business trying to strip immigrant communities of one of the primary bulwarks for their rights. To say that the Biden administration is punching down is an understatement.

After the horrors of the prior administration, we had hoped for a Biden administration that would choose the right side of history and be serious about protecting immigrant communities. Instead, Gonzalez is yet another disappointment. But no matter what, the ACLU stands ready to fight for a future America where immigrants have the same rights, dignity, and freedom as everyone else — especially when their government fails them.

By Nancy Rosenbloom, Senior Litigation Advisor & Kyle Virgien, Senior Litigation Advisor, ACLU

Twenty-one months into the pandemic, many people outside of jails, prisons, and civil detention centers in the U.S. are rushing to get their booster vaccines and are spending time with friends and family in ways that felt impossible less than a year ago. The pandemic is far from over, as the omicron variant has made clear. Still, heralding vaccines and rapid tests, public officials are urging vaccinated Americans to celebrate the holidays together, carefully. “We’ll get through this,” President Biden said in his address this week.

Yet for people who are incarcerated, the risks of COVID-19 infection remain extraordinarily high, and the risk of death is even higher than for those outside these facilities. Carceral institutions haven’t equitably applied, or in some cases even made available, advances made beyond prison walls — even in the face of court orders requiring basic public health measures. And as omicron spreads rapidly across the country, people in jails and detention are among the most vulnerable, yet again.

The COVID-19 pandemic has made the need to decarcerate more urgent than ever. More than half a million people incarcerated in prisons have been infected; this number doesn’t even account for people in jails or ICE detention and is surely an undercount. Further, there is abundant proof that the failure to protect incarcerated people from the virus contributes to the spread of COVID-19 in surrounding communities.

As the latest highly transmissible variant sweeps through the country, the ACLU and our partners continue to hear from incarcerated clients who fear for their safety. One client incarcerated in the Maricopa County, Ariz. Jail, D,* has been held in an area full of bunk beds, crammed in with as many as 130 other women. Despite the fact that she is medically vulnerable to COVID-19 infection, she waited more a month after filing a medical request for a vaccine to receive one. L, who is held at the massive Broward County, Florida jail, testified at a court hearing that he requested a vaccine multiple times but didn’t receive one, and that the jail never tested or symptom-screened him or others when they were moved from one housing unit to the next or even when they had obvious COVID-19 symptoms.

C, who recently immigrated to the U.S., was first held in a detention center at the Southern border and then transferred to an ICE facility in Washington state. Even though several people in the group had cold-like symptoms or fevers, nobody was tested before this transfer. They spent a full day shackled next to each other on buses and a plane, unable to move or socially distance. A few days later, C received a positive test result for COVID-19.

These disturbing stories are far from anomalous, and if swift action isn’t taken, we will continue to hear more of them as omicron spreads. Local jails, prisons, and civil detention facilities like those operated for ICE all have the responsibility under the U.S. Constitution to care for the people in their custody. Despite that fact, incarcerated people remain at least three times as likely to be infected with COVID-19 and around three times as likely to die of the disease than people in the free population. These statistics are likely even higher because, researchers have discovered, so many corrections systems either don’t report numbers at all or vastly under-report information based partly on their widespread decisions not to provide sufficient COVID-19 testing.

In the United States, carceral facilities are among the worst places to be when it comes to the risk of illness and death from COVID-19. The virus can spread and adapt in such places, which lack social distancing, adequate hygiene, and health care. Jails, prisons and detention facilities are congregate living settings designed to cram large numbers of people into small spaces. Vaccine education and availability is also limited and ineffective, often leading to “shockingly low” rates of vaccination among incarcerated people, as one health expert testified at a hearing about a Tennessee jail holding more than 2,100 people. Making matters worse, many jails and prisons refuse to even ask their staff if they’re vaccinated, much less require it. Staff go in and out to the community daily, becoming the primary vectors for COVID-19 transmission.

Even as Biden and other officials urge people nationwide to get their initial vaccinations and booster shots as quickly as possible, aNew England Journal of Medicine article concluded that “vaccination alone will not be enough to stop carceral outbreaks.” And even if there were very high rates of vaccination in jails and prisons and adequate physical distancing, the article says, “even a vaccine with 90 percent efficacy will leave many people at ongoing risk for COVID-19, given the extraordinarily high rate of transmission in jails and prisons attributable to rampant overcrowding, inadequate testing and health care, high-volume daily inflow and outflow of staff and detainees, lack of personal protective equipment, and normalized systematic neglect of the welfare of incarcerated people.”

Jails and prisons know what they have to do to keep people as safe as possible from COVID-19 — the CDC has issued and updated detailed guidance specifically for those facilities. But they’re still not doing it. Courts have found “widespread callous disregard for the safety of immigration detainees” across the country, a “vaccination rate at the jail … [that] signals a population in deep peril,” and many more failures of jails and prisons to take precautions.

All across the U.S., incarcerated people have sued their jailers to get even the most basic public health protections. The ACLU represents people in 83 of those cases, along with local legal partners and community-based allies. Our clients are suing to be released whenever possible, and for adequate masks, cleaning supplies, physical distancing, ventilation, vaccinations, educational materials, and no-cost COVID-19 testing and medical care. They are also seeking to require staff who enter the facility from the outside to be vaccinated so that they are less likely to bring the virus into the facility.

These cases, along with advocacy and legislative efforts, have resulted in the release of tens of thousands of people at serious risk across the country. Even in successful cases where courts have issued injunctions and approved consent decrees, though, many of those jails and prisons are refusing to comply with court orders. There remains much more work to be done, and jails and prisons are filling up again.

How Can You Help?

It’s difficult to get the attention and empathy of many people in centers of power when it comes to their community members who are locked up, but that attention is there in communities, faith groups and activists, and especially among the friends and families of loved ones who are incarcerated.

The community can show it cares. This is especially important for your county’s jail, which your local sheriff often controls. Speak out, keep the focus on the sheriff or other decision makers, publish op-eds, hold forums, and listen to the wisdom of people who are or were incarcerated and their loved ones. You can call on the authorities to:

• Immediately identify as many people as possible for rapid releases and let them out;
• Reduce arrests and prosecutions for low-level crimes to prevent population increases in jails (a policy that has proven to actually decrease public complaints of these crimes);
• Require staff vaccinations or achieve high vaccination rates among staff;
• Provide appropriate vaccine education to incarcerated people, with the chance to ask questions privately of trusted medical personnel or community leaders;
• Increase COVID-19 testing; and
• Make tests, vaccines, and COVID-related medical care free of charge.

If the situation seems dire, that’s because it is. But you don’t have to sit back and watch this disaster unfold — you can take meaningful action in your own community to make it clear to your elected leaders that decarceration is essential, and that it is their responsibility to keep the people in their custody safe.

*Names have been abbreviated to protect the privacy of our clients.