Last night's State of the Union address covered many issues important to Americans, including economic inequality, winding down foreign wars, climate change, pay equity, closing Guantanamo, voting rights, and much more.
But from a civil liberties perspective, was it a home run? We don't think so. Overall, the speech was rather cautious in the agenda it laid out for the coming year (perhaps a reflection of gridlock in Washington), and there are some critical issues the President must address in his sixth year in office.
Below are six of the things we wish the President would have addressed (or addressed more fully) in the State of the Union:
- Immigration: President Obama commendably reaffirmed the urgent need to pass immigration reform with an inclusive roadmap to citizenship, and we are particularly glad that he recognized the enormous contributions of undocumented members of our communities. We would have liked, however, to hear not just about what Congress should do, but about what the President will do to help millions of families who continue to suffer because of the administration's mass deportation policy. As the number of deportations during President Obama's administration is set to hit 2 million—more than under any other president—and massive militarization continues to harm border communities, it is crucial that the administration use its authority to reform its policies and practices. The President must commit to border and interior enforcement that ends racial profiling and upholds American values of due process, and humane exercise of discretion when enforcing the law.
- Criminal Justice: In a speech largely about inequality, we had hoped that the President would talk about the crisis of overincarceration in our criminal justice system. We know the President and the Attorney General care about our needlessly bloated prisons and the racial discrepancies that dominate our criminal justice system, but we are concerned about the lack of federal progress on these issues. Some states have implemented smart reforms to stop growth of their prison populations, but the federal system has continued to expand. The President should have urged Congress to pass the Smarter Sentencing Act last night, because we need to roll back mandatory minimums. Judges should have the ability to make sentences fit the crime, not be forced to send people away for extreme terms that are way out of proportion to the crime.
- LGBT Nondiscrimination: This is just getting old now. As a candidate for president in 2008, then-Senator Obama told the Houston GLBT Political Caucus that, if elected, he would support an LGBT nondiscrimination requirement for businesses that contract with the federal government. President Obama has now been in office for more than 1,800 days, and yet there is still no such requirement in place for federal contractors. President Obama should have made clear once and for all his intention to sign an executive order to put these common sense protections in place. In a night when so many other executive orders were announced, not stating an intention to issue this one was an odd omission.
- Surveillance: We are glad that the President said that he would work with Congress to reform our surveillance. But he didn't say that he would stop surveillance of everyday people and bulk collection of private information, and so it still falls short. The President must embrace the much more far-reaching reforms proposed by his own Review Group, Congress, and the Privacy and Civil Liberties Oversight Board. The last seven months have revealed that there are many programs, obtaining many different types of information, and they interconnect to create a vast spying regime.
- Racial Profiling: President Obama has gone on the record before in favor of ending the pervasive practice of . Based on comments he's made in the past, it's clear the President believes that profiling goes against our Constitution and our country's value of equality. Unfortunately, his administration has yet to issue updated Guidance banning the use of racial profiling by law enforcement, and we would've loved to hear him make that announcement in his speech last night. Profiling based on race or religious beliefs and practice is ineffective, erodes public trust in law enforcement, and violates the Constitution. The President must stop law enforcement agencies from discriminating against Americans because of the color of their skin or the way they dress.
- Privacy: Though the President did mention his commitment to broadband access – something we have long advocated for as a critical step to ensure that all Americans can take advantage of their 1st Amendment rights – we are disappointed that he did not mention the need to modernize the Electronic Privacy Communications Act. This law was last updated in 1986; since then, technology has advanced at breakneck speed while the law has remained at a standstill. This outdated law allows the government to intercept and access a treasure trove of information about who you are, where you go, and what you do, which is being collected by cell phone providers, search engines, social networking sites, and other websites every day. Online privacy law shouldn't be older than the Web, and Americans shouldn't have to choose between new technology and privacy.
Okay, we said six. But this list just wouldn't be complete without including pay equity!
- Pay Equity: The President spoke eloquently about the need for equal pay for equal work, calling the wage gap "wrong" and an "embarrassment." Unfortunately, he didn't use the moment to call on Congress to pass the Paycheck Fairness Act. Moreover, he also didn't announce any plans to issue an executive order banning retaliation against the employees of federal contractors for disclosing or inquiring about their wages. While that would not reach as far as the Paycheck Fairness Act, it would be an important first step that the President could do right now to help protect women in federal contracting from wage discrimination.
Learn more about your civil liberty issues: Sign up for breaking news alerts, , and .
Learn More About the Issues on This Page
-
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.