Lawmakers, journalists and bloggers have all been galvanized by recent revelations about the FBI's extensive use of National Security Letters, which permit the bureau to demand certain types of personal records without any prior judicial review.
Bart Gellman's got the attention of Senate leaders from both sides of the aisle. In , Republican Senator Tom Coburn voices concerns over the rampant issuance of NSLs. Republican Chuck Hagel is also quoted, saying, "I have always been concerned about centralization of power and eroding individual rights." On , Democrat Ted Kennedy pointed out that the activities described in the article "could happen again tomorrow if the House bill were to be successful in the conference between the House and Senate."
The ACLU is litigating challenges in two NSL cases, now consolidated on appeal in the Second Circuit. We ourselves remain under a strict government gag order, and our client and its representatives are still gagged from adding their firsthand knowledge about NSLs to the now-swirling controversy over the Patriot Act.
There are, however, several things worth noting:
First, the sheer quantity of NSLs now being issued per year is alarming. Tim Edgar, our Legislative Counsel on National Security, told me today, "National Security Letters used to be a small but potent tool in national security investigations, but the Patriot Act and the 2004 Intelligence Act changes that redefined boat dealers, casinos, and pawnbrokers as "financial institutions" have opened the floodgates to 30,000 annual government requests, a hundredfold increase in the use of this shadowy power."
Associate Legal Director Ann Beeson is the person who made the oral arguments last week in the Connecticut case. "With 30,000 NSLs issued in a single year," she told me, "every American should be concerned that their private records have been caught up in the FBI dragnet. Despite the FBI's ongoing efforts to keep secret its expanded spying powers under the Patriot Act, we now know that the FBI is using National Security Letters to demand library, university, financial, Internet and other personal records without court approval."
There are other alarm-bells in the Post article, such as the news about NSL dragnets against casinos and this anecdote about using NSLs as a sledgehammer to get at university records at N.C. State:
David T. Drooz, the university's senior associate counsel, said special authority is required for the surrender of records protected by educational and medical privacy. The FBI's first request, a July 14 grand jury subpoena, did not appear to supply that authority, Drooz said, and the university did not honor it. Referring to notes he took that day, Drooz said Eric Davis, the FBI's top lawyer in Charlotte, "was focused very much on the urgency" and "he even indicated the case was of interest to President Bush."
The next day, July 15, FBI agents arrived with a national security letter. Drooz said it demanded all records of Nashar's admission, housing, emergency contacts, use of health services and extracurricular activities. University lawyers "looked up what law we could on the fly," he said. They discovered that the FBI was demanding files that national security letters have no power to obtain. The statute the FBI cited that day covers only telephone and Internet records.
Soon afterward, the FBI returned with a new subpoena. It was the same as the first one, Drooz said, and the university still had doubts about its legal sufficiency. This time, however, it came from New York and summoned Drooz to appear personally. The tactic was "a bit heavy-handed," Drooz said, "the implication being you're subject to contempt of court." Drooz surrendered the records.
Investigators, he said, "were in a big hurry for obvious reasons" and did not approach the university "in the exact right way."
As Gelman notes, even the FBI knew NSLs could get out of hand. A month after the Patriot Act passed, then-head of the national security law unit told colleagues: "NSLs are powerful investigative tools, in that they can compel the production of substantial amounts of relevant information. Â… The greater availability of NSLs does not mean that they should be used in every case." Gellman reports that more recently Woods has been "struck by how starkly he misjudged the climate. The FBI disregarded his warning, and no one noticed."
"With 30,000 requests being issued per year for the records of ordinary Americans," Tim Edgar told me, "these letters are now far more common than the national security powers that must face review by the secret court that oversees surveillance. Congress has been almost entirely in the dark about this extraordinary increase in surveillance, and while it is considering a few changes, it has focused much of its attention on other provisions that expire at the end of this year. Whatever happens with the rest of the Patriot Act, Congress should sunset this power so it can thoroughly review it."
The blogs are also on this story. Huffingtonpost.com has posting. Volokh has . Librarian.net has . The Jurist at University of Pittsburgh Law School has .
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
Press ReleaseDec 2024
National Security
Religious Liberty
ACLU Statement on New White House Strategy to Counter IslamophobiaACLU Statement on New White House Strategy to Counter Islamophobia
WASHINGTON – The Biden administration today released the first-ever national strategy to counter Islamophobia and related forms of bias and discrimination, including hate against Arab, Sikh, and South Asian Americans. In advance of the strategy, American Civil Liberties Union and its partners had urged the administration to overhaul government programs that reflect anti-Muslim discrimination. In particular, we have called for urgent action to constrain governmental agencies from continuing to exercise their authorities and technology to wrongly surveil and investigate, watchlist, and question and detain Muslims at the border, as well as deny immigration benefits to people from Muslim-majority countries. While the White House raised expectations that many of these issues would be addressed, the final strategy ended up falling far short. The following is a statement from Hina Shamsi, director of the ACLU’s National Security Project: “While this strategy acknowledges discrimination and its harms, it does little to end them and is a squandered opportunity. For decades, American officials have invoked national security to pass laws and implement programs that disproportionately harm Muslims and people perceived to be Muslim. A serious anti-discrimination strategy would concretely address multiple bias-infused government practices that deny our communities equal participation in civic life and our democracy, like federal watchlisting, surveillance, and investigation. We’re profoundly frustrated that the administration didn’t take even the basic, overdue step of recognizing that anti-Muslim discrimination is uniquely normalized and embedded in government policies.” -
VirginiaDec 2024
National Security
Trabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted ManTrabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted Man
Our client, Nizar Trabelsi, is in the United States against his will. The federal government brought him here from Belgium more than a decade ago and charged him with terrorism-related crimes. At trial, the government’s case failed: a federal jury found Mr. Trabelsi not guilty. But instead of allowing Mr. Trabelsi to return to Belgium after his acquittal, the United States placed him in highly restrictive immigration detention and began an ongoing effort to force him to Tunisia, where he was born and where he will very likely be tortured. Mr. Trabelsi’s detention violates the Constitution, immigration law, and the extradition treaty between the United States and Belgium. Through this lawsuit, he seeks to return to Belgium, and he demands an immediate improvement of his detention conditions. -
Press ReleaseDec 2024
National Security
Immigrants' Rights
Federal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is UnlawfulFederal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is Unlawful
ALEXANDRIA, Va. — This week, the U.S. District Court for the Eastern District of Virginia ruled that the court does not have jurisdiction to decide whether the government can continue to detain Nizar Trabelsi, a Tunisian national who was brought to the United States against his will for prosecution and was cleared of all charges last year. The ruling means the United States will be able to continue to detain Mr. Trabelsi while it attempts to deport him to Tunisia, where he was born and where, as an immigration judge ruled earlier this year, he will likely face torture. The court also concluded that even if it did have jurisdiction over Mr. Trabelsi’s case, his claims challenging the government’s detention of him would fail. “Reviewing claims that the government is holding someone unlawfully is at the core of the judicial function, and we’re heartbroken for our client that the court got this so wrong,” said Brett Max Kaufman, senior staff attorney with the ACLU’s Center for Democracy. “The government’s arguments in defense of Mr. Trabelsi’s detention makes a hash of the Constitution, immigration laws, and its own extradition treaty.” In 2013, the United States forcibly extradited Mr. Trabelsi from Belgium to face criminal charges in the United States. In July 2023, after almost 10 years of highly restrictive pretrial detention, a federal jury cleared Mr. Trabelsi of all charges. But instead of releasing Mr. Trabelsi or returning him to Belgium, the U.S. transferred him to immigration detention, wrongly treating him as an applicant for admission and placing him in the deportation process. Over the years, the Belgian government has issued multiple formal diplomatic requests asking the U.S. to facilitate his return, but the U.S. has refused to send him back. Mr. Trabelsi filed a lawsuit challenging the government's authority to detain him. He also sought immediate improvements to his detention conditions. Those claims were not part of the court’s ruling today, and will continue to be litigated on a separate track. “Mr. Trabelsi only wants to return to Belgium after being illegally extradited to the United States, held for ten years, and then acquitted by a jury of any crimes,” said Nicole Hallett, clinical professor of law and director of the Immigrants’ Rights Clinic at the University of Chicago Law School. “He cannot be held indefinitely and we will continue to fight to make sure that justice ultimately prevails.” Mr. Trabelsi is represented by the American Civil Liberties Union, the University of Chicago Law School’s Immigrants’ Rights Clinic, the ACLU of Virginia, and Professor Jonathan Hafetz of Seton Hall Law School. The complaint in Trabelsi v. Crawford was filed against Jeffrey Crawford, warden of the Farmville Detention Center where Mr. Trabelsi is being held; Liana Castano, ICE field office director for the Washington Field Office; Alejandro Mayorkas, secretary of the Department of Homeland Security; and Merrick Garland, U.S. attorney general.