According to the , new FBI Director James Comey is struggling with an FBI budget shortfall as a result of the sequester (even though the FBI budget more than doubled since 2001). Since we just finished Unleashed and Unaccountable, a detailed examination of the transformation of the FBI since 9/11, we thought we'd offer the new director a few ideas about programs that deserve to get the axe, because they're ineffective, undermine innocent Americans' privacy and civil liberties, or simply offend American values.
1. The FBI's racial and ethnic mapping program
The motto on the Seal of the United States is "E Plurbis Unum," or "Out of many, one," but that's not how the FBI sees it. The FBI uses intelligence authorities provided in the Attorney General's Guidelines to collect racial and ethnic demographic data so it can identify and map racial and ethnic neighborhoods and "facilities." It also tracks what it calls racial and ethnic "behaviors," but it is fighting our Freedom of Information Act requests to see what these "behaviors" were, and how it has used its mapping authorities. The FBI identifies these racial and ethnic communities so they can target them for future investigation and intelligence collection, as it said in a press release, "[j]ust as putting push pins on a map will allow a local police chief to see clearly where the highest crime areas are." Only these aren't crimes the FBI is mapping, but innocent Americans targeted solely because of the color of their skin color, their national origin, or their religion. This program is antithetical to American values or equal justice and the FBI director should end it today.
2. Domain Management programs
Racial mapping is only one intelligence program the FBI runs under the Orwellian moniker of "Domain Management." The FBI directs its special agents in charge at its field offices not just to enforce the law and protect national security in their territories, but to "." Former FBI Director Robert Mueller knowing their domain means "understanding every inch of a given community – its geography, its populations, its economies and its vulnerabilities." There's no problem with a domestic intelligence agency knowing the geography and economies of a given area, but the FBI has no business gathering intelligence information about innocent Americans. And based on FBI documents obtained through FOIA, that's exactly what it is doing. The ACLU found FBI intelligence agents in San Francisco mimicked FBI community outreach programs to gather information about the First Amendment-protected activities of community groups, which they often labeled "" and disseminated outside the FBI. Last year the ACLU called on the Justice Department Inspector General to investigate the FBI for Privacy Act violations resulting from this program, as have , but there is no indication the inspector general has started such an investigation. Director Comey should end this program.
3. Assessments
Domain Management is only one type of intelligence collection platform the FBI has created to collect information on innocent Americans. In December 2008, as the Bush administration was walking out the door, it made sweeping modifications to the Attorney General's Guidelines for FBI domestic operations that gave FBI agents the power to open intrusive investigations called "assessments" against individuals and groups without any reason to believe they were breaking the law or threatened national security. Rather than suspend these drastic changes when it came into power the following month, incoming Attorney General Eric Holder said during his confirmation hearings that he wanted "." In the two years from March of 2009 to March 2011, the FBI opened more than 82,000 of these assessments of people and groups without a factual basis to suspect wrongdoing. Only 3,315 of these assessments found information sufficient to justify further investigation. Yet the FBI retains all of the in the 78,000 assessments that found no evidence of wrongdoing essentially forever. The FBI shouldn't be collecting, much less retaining, information on innocent Americans.
4. eGuardian "Suspicious" Activity Collection
In 2009, the FBI established a new database called eGuardian to collect reports of "suspicious" behavior generated by state and local law enforcement agencies. Like many other suspicious activity reporting (SAR) programs, the standards governing the definition of "suspicious" conduct for reporting to eGuardian are extremely vague and over-broad, making it likely that reports will be based on racial or religious profiling or other bias. The ACLU of Northern California recently obtained hundreds of , including many that were entered into eGuardian, which are targeted based on racial and religious characteristics and First Amendment-protected activity like photography. The Government Accountability Office criticized the federal government's SAR programs for failing to establish metrics to determine whether they actually improve security. Any program that violates rights and doesn't improve security should be closed immediately.
5. Patriot Act Bulk Data Collection
The recent about the FBI using the Patriot Act's "business records provision" to collect all U.S. telephone call data in bulk is only the latest in a long line of abuse of these authorities, and likely only the tip of the iceberg. The government used a similar program to collect all metadata about Americans' Internet use under another Patriot Act provision, which closed in 2011 because it was . Based on the government's interpretation of the law surrounding such data collection, it is likely that there are other bulk data collection programs not receiving proper oversight. Twenty-six U.S. senators have to the Director of National Intelligence James Clapper asking whether other programs operate, including whether the government is collecting cell-site location data. Americans have a right to privacy in their communications and associations, and suspicion-less bulk collection programs must end.
Spying on innocent people rarely helps find guilty people. We hope that by giving Director Comey a few ideas about FBI programs that can be cut to save expenses, he can turn his attention to other abusive FBI practices documented in the ACLU report. Ending practices that violate civil liberties won't necessarily put the FBI's budget back in the black, but it is still the right thing to do.
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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.