During today’s nomination hearing for Gina Haspel, President Donald Trump’s pick to lead the CIA, Haspel testified about a topic that has rightly generated significant controversy: the destruction of 92 videotapes showing CIA torture.  

Sen. Diane Feinstein (D-Calif.), asked a question about the destruction of those tapes, misspeaking when she referred to tapes showing interrogations “of 92 detainees.” Haspel, seemingly determined to correct Feinstein, stated that the tapes “were of only one detainee.”

But the CIA’s own records produced in response to the ACLU’s torture transparency litigation contradict Haspel. According to those records, which include a declaration under oath from then-CIA Director Leon Panetta, the 92 destroyed tapes depicted abuse of two detainees: Abu Zubaydah and Abd al-Rahim al-Nashiri. 

Here’s what we know: The videotapes were subject to long-running ACLU Freedom of Information Act litigation seeking to make public information about the torture program. After news about the videotape destruction broke, the judge in the case ordered the CIA to produce information about, among other things, the content of those videotapes. 

One of the documents the CIA produced — with a heading “Inventory and Review of Interrogation Videotapes”— shows that in December 2002, the CIA inventoried tapes created during the interrogations of both Abu Zubaydah and al-Nashiri. According to the inventory, 90 of the videotapes were of one detainee (Detainee #1), referenced sometimes as AZ or Abu Z.  Tapes numbered 91 and 92 in that document were under a subheading, “Detainee #2.” Detainee #2 is not identified, but based on the initial description in the document itself, we can presume detainee #2 was al-Nashiri. In any event, it’s clear there were tapes of two detainees. 

There’s more. In the lawsuit, Panetta provided a sworn declaration in response to a court order requiring “the Government to compile a list of documents related to the contents of 92 destroyed videotapes of detainee interrogations that occurred between April and December 2002.” The court also ordered the CIA to select a sample of 65 documents for review for potential release. The Panetta declaration attached a log containing descriptions of those sample documents. Most refer to Abu Zubaydah. But three refer to both Abu Zubaydah and al-Nashiri, or al-Nashiri alone (documents number 51, 52, 53). It’s hard to see why Panetta would have included those three documents, which specifically name al-Nashiri, if his abuse wasn’t related to the “contents of the 92 destroyed videotapes.”

That’s not all. The judge in the case, who reviewed the documents himself, made clear in a subsequent opinion that 90 videotapes recorded Abu Zubaydah, two were of sessions with al-Nashiri, and that 92 videotapes were destroyed. And a November 2005 CIA cable confirms that “ALL 92 [REDACTED] VIDEOTAPES WERE DESTROYED.”

There’s still more. The executive summary of the Senate Intelligence Committee’s Torture Report also specifically says that on December 11, 2007, the committee “initiated a review of the destruction of videotapes related to the interrogations of CIA detainees Abu Zubaydah and Abd al-Rahim al-Nashiri after receiving a briefing that day on the matter by CIA Director Michael Hayden.”

This leaves us with a host of questions. Why did Haspel say the tapes were of one detainee? It’s possible she misspoke. But if what she said is true, does that mean multiple CIA records submitted in response to a court order were incorrect? And could that mean that there are still tapes out there depicting al-Nashiri’s torture which Haspel oversaw? If so, has Congress seen them? If not, what happened to them?

Add your name to declassifY Haspel’s torture record

Or was she not telling the truth? And if so, what else is she not telling the truth about?  There’s already another discrepancy today in accounts about the videotape destruction. There’s no dispute that Haspel was an avid proponent of destruction. In a Propublica account published today, Haspel’s then-boss at the CIA, Jose Rodriguez, says he told Haspel in advance that he intended to destroy the tapes. In her Congressional testimony, Haspel denied that he did so.

Perhaps there’s some other explanation for the detainee videotape discrepancy. And for why Haspel’s account doesn’t square with Rodriguez’s. But unless the CIA releases more information about Haspel’s role — beyond the information serving its propaganda campaign on her behalf — we won’t know. 

Nathan Freed Wessler, Staff Attorney, ACLU Speech, Privacy, and Technology Project & Esha Bhandari, Staff Attorney, ACLU Speech, Privacy, and Technology Project

A federal appeals court in Virginia issued an important decision today, ruling that under the Fourth Amendment, U.S. border authorities cannot search travelers’ cell phones and other electronic devices without individualized suspicion of wrongdoing. The court joins a growing chorus of judges who recognize that it is no longer tenable to uncritically find that old rules from pre-digital cases govern highly invasive searches of our digital data.

In the case, United States v. Kolsuz, border agents stopped a traveler as he boarded an international flight at Dulles Airport and found firearm parts in his checked luggage, which they suspected he lacked a license to export. Without obtaining a search warrant, agents seized the traveler’s phone, briefly searched it at the airport, and then sent it to a separate facility where investigators conducted a thorough “forensic” search of all of the data saved on the device. That included all of the traveler’s “personal contact lists, emails, messenger conversations, photographs, videos, calendar, web browsing history, and call logs, along with a history of [his] physical location down to precise GPS coordinates.”

The defendant challenged that forensic search as a violation of his Fourth Amendment rights. In a friend-of-the-court brief and at oral argument, the ACLU explained that in light of the tremendous quantity and variety of private data stored on our smart phones and similar devices, the government should have been required to get a search warrant from a judge. At the very least, border agents must demonstrate good reason to believe the traveler was violating the law before conducting the search. We urged the court to reject the government’s argument that cell phones should be treated the same as regular luggage, which border authorities are routinely allowed to search without a warrant or any individualized suspicion.

In its opinion, the Fourth Circuit Court of Appeals largely agreed, writing that the “sheer quantity of data stored on smartphones and other digital devices dwarfs the amount of personal information that can be carried over a border – and thus subjected to a routine [suspicionless] border search – in luggage or a car … The uniquely sensitive nature of that information matters, as well.” Therefore, the court held, “it is clear that a forensic search of a digital phone must be treated as a nonroutine border search, requiring some form of individualized suspicion.”

The court decided that it did not need to reach the question of whether probable cause or a warrant is required (as opposed to reasonable suspicion, a lower legal standard), nor whether the same rule should apply to so-called “manual” searches, in which agents look through the contents of devices themselves without sending them out for forensic searches.

Courts across the country have been struggling with how to apply the Fourth Amendment in this context, in an era when tens of thousands of people are subjected to searches of their electronic devices at the border each year. Today’s ruling from the Fourth Circuit joins an earlier decision from the Ninth Circuit Court of Appeals requiring at least reasonable suspicion for forensic searches of electronic devices seized at the border. In March, two judges on the Eleventh Circuit concluded that such searches should be treated the same as searches of physical luggage, which don’t require a warrant, while a third judge dissented, arguing for a warrant requirement. Earlier that month, a Fifth Circuit judge expressed strong skepticism that the traditional rationales for warrantless border searches should be extended to searches of electronic devices, but that court declined to set a rule.

The Fourth Circuit’s decision is a significant step in the right direction, but more clarity is needed. That’s why the ACLU, along with the Electronic Frontier Foundation, has sued the federal government on behalf of 11 people who were subjected to suspicionless searches of their phones and laptops when coming home to the U.S. As we have argued in that case, requiring border agents to get a warrant based on probable cause is the only way to fully ensure that travelers’ Fourth Amendment rights are not violated just because they find themselves at the border. We expect a decision in that case in the coming months. (Update: The day after this article was published, the federal court in this case rejected the government's motion to dismiss the lawsuit. Read about that decision here.)

The patchwork of judicial opinions leaves travelers with different levels of constitutional protection depending on which airports or land crossings they find themselves at. As with other types of highly invasive searches of digital data, this is an issue on which we need consistent — and strong — protections across the nation.

In a rebuke to the Trump administration’s immigration enforcement policies, a New Hampshire court ruled last week that a Border Patrol checkpoint on an interstate highway last summer was “unconstitutional under both State and federal law.” 

Don’t believe for a second the administration’s official response that this decision “does not affect the U.S. Border Patrol’s federal authority to conduct immigration checkpoints.” All motorists’ constitutional rights got a huge boost from Judge Thomas Rappa’s refusal to give Trump’s deportation force a blank check to pretextually set up a drug checkpoint under the guise of immigration enforcement.

Why was this checkpoint unlawful?

Because federal customs and border agents used impermissible dog-sniff searches to go after drugs without a warrant and without any reasonable suspicion that a crime had been committed. After conducting these dog-sniff searches, CBP agents then turned over to the local police the resulting evidence for state drug prosecutions.

Hundreds, if not thousands, of individuals were searched and seized on Interstate 93 in August 2017, including 16 individuals who the ACLU of New Hampshire represented in court.  On behalf of these 16, the ACLU-NH and co-counsel asked the state district court to suppress the small amount of drugs allegedly found during the checkpoint.

The court agreed to suppress the evidence and ruled that these searches violated the New Hampshire Constitution. While the U.S. Constitution may allow warrantless and suspicionless dog-sniff searches, the New Hampshire Constitution specifically forbids it. Nevertheless, state prosecutors brought charges in state court based on evidence that was illegally seized under state law. 

The court explained that the “inadmissibility of the evidence does not change based on the fact that it was seized by federal officers and then handed over to the State.”  According to the court, the New Hampshire Constitution had to apply because CBP and the local police “were working in collaboration with each other with the understanding that the [local police] would take possession of any drugs seized below the federal guidelines for prosecution in federal court and bring charges in this [state] court based on that evidence.”

Indeed, after the checkpoint, the local police chief boasted to the local press that CBP has “a lot more leeway” to conduct searches, noting that he himself could not subject drivers to a dog sniff without reasonable suspicion of a crime.

The court also ruled that the Woodstock checkpoint violated the Fourth Amendment.  Federal law provides CBP with the authority to conduct temporary and limited immigration checkpoints within 100 air miles of any land or coastal border so long as there is a required nexus to a border crossing. Since the entire state sits within 100 miles of the Canadian border and the Atlantic Ocean, CBP asserts that it can set up immigration checkpoints across all of New Hampshire. 

Under the Fourth Amendment, however, the United States Supreme Court has only authorized these interior checkpoints within the 100-mile zone, like the one in Woodstock, under limited circumstances for brief immigration inquiries. During these brief inquiries, all that is required of the vehicle’s occupants is “a response to a brief question or two and possibly the production of a document evidencing a right to be in the United States.” Border patrol agents cannot search the vehicles or occupants without probable cause, and the primary purpose of the checkpoint cannot be drug-related.

KNOW YOUR RIGHTS IN THE BORDER ZONE

The court concluded that this checkpoint violated these Fourth Amendment rules because the checkpoint’s primary purpose was drug interdiction, not immigration enforcement. As Judge Rappa explained, “it is patently clear that the primary purpose of [the local police] being present at the checkpoint in August [was] to accept the illegal drugs confiscated by the CBP searches in order to prosecute the defendants on state drug charges.” Indeed, Border Patrol often pretextually uses checkpoints to maximize drug seizures and arrests as part of the war on drugs.

Our concerns about this incident don’t end there.

We are also suspicious of the central role played in drug detection by Border Patrol canines. These dogs are often not adequately trained and certified and thus lead to frequent false alerts, which result in unjustified searches and detentions. The court was correctly suspicious of this too, noting that “there were numerous, ‘non-productive alerts,’ by the dogs at the [Woodstock] checkpoints which extended the duration of the stops … but resulted in no evidence of a crime being found.”  Indeed, the court granted our motion to suppress as to seven defendants on an alternative ground that no evidence was presented regarding the Border Patrol canine’s training or certification.

This New Hampshire court decision, as one commentator noted, “serves as a crucial reminder that the agency can’t always use the pretext of illegal immigration to curtail civil liberties.” Here, CBP abused its federal authority, in collaboration with local police, to circumvent the constitutional rights of those traveling in New Hampshire.

So we sued. And we won.