Disclosure of secrets has been in the air these last few months. We've witnessed a remarkable stream of revelations about the , followed by government disclosures concerning hidden intelligence programs and the secret court opinions that authorized them.
As a result, we now know many more details about the NSA's previously hidden domestic spying activities, capacities, and goals — secrets that, until June, we didn't know (even though we should have). Today, however, the ACLU will appear before a federal appeals court to argue for the release of so-called "secrets" that have been known to the public for years.
If that sounds like something out of Alice in Wonderland, don't worry — it practically is. The case being argued today in New York concerns a Freedom of Information Act request filed by the ACLU seeking the government's legal and factual bases for the "targeted killing" of three American citizens. The dispute before the appeals court principally concerns the gap between what the CIA maintains is secret about its involvement in targeted killing — that is to say, everything beyond its "intelligence interest" in the program — and what has been officially and publicly acknowledged by government officials. The district court ruled for the government in January, but admitted that the seeming absurdity of this result had the flavor of Lewis Carroll's classic.
First, the facts: For years, the national media has documented the United States' use of drones for the targeted killing of terrorism suspects in places like Pakistan, Yemen, and Somalia. The program is operated by both the U.S. military's Joint Special Operations Command and the CIA.
In September 2011, media outlets around the world reported the targeted killing by the United States of an American citizen, Anwar Al-Aulaqi, in northern Yemen. Killed in the same strike was another American, Samir Khan. And two weeks later, a U.S. drone killed Mr. Al-Aulaqi's 16-year-old American son with six other people at an open-air restaurant, also in Yemen. Shortly afterwards, the ACLU filed its FOIA request. (Reporters for The New York Times filed a similar request; the Times will be in court today as well.)
In the face of criticism and questions from across the political spectrum both before and after these killings, the government embarked upon what a federal appeals-court judge last year called a "pattern of strategic and selective leaks at very high levels of the government" to defend and justify its actions. While some officials spoke under cover of anonymity, others (perhaps some of the same ones) spoke publicly. For example, when Leon Panetta was director of the CIA, he addressed questions about the agency's use of drones on several occasions; later, as secretary of defense, he joked in a public speech to troops that the Predator drones he commanded at the CIA "weren't bad" military-grade weapons. John Brennan, the White House's top counterterrorism advisor, told one newspaper of his personal effort to shift responsibility for targeted killing from the CIA to the military. (Mr. Brennan now runs the CIA.)
More recently, both chairpersons of the congressional intelligence committees spoke on television, on the radio, and in press releases about their oversight of the CIA's use of drones. Mike Rogers, the House intelligence committee chair, went so far as to describe monthly meetings at the agency during which his committee views videos of recent strikes. And Dianne Feinstein, chair of the Senate intelligence committee, openly compared the CIA's record of drone-caused civilian deaths with that of the military.
Next, the rabbit hole: In 2011, the CIA responded to the two FOIA requests by refusing to "confirm or deny" whether it even possessed records related to the killings of the U.S. citizens. And in spite of the continuous stream of disclosures about the CIA's involvement in the U.S. targeted-killing program, the agency has barely budged. While it now concedes that it holds these records, it claims it cannot describe them in any way — with the exception of two public speeches made by government officials — without revealing state secrets.
The secrets the CIA is now protecting are not secrets in any genuine sense. Yet, today, a government lawyer will stand up in court to argue that something the entire world knows to be true — that the CIA is carrying out targeted killings — is something that this country's federal courts must pretend is unknown.
But, as my colleague Jameel Jaffer, who will argue before the appeals court today, put it:
The argument that releasing the legal memos would compromise national security is simply not plausible. Nor is the government's claim that other records can't be described or even listed. For several years now, senior officials have publicly claimed that the targeted killing program is effective, lawful, and closely supervised. If they can make these claims to the public, there is no reason why they should not be required to respond to requests under the Freedom of Information Act.
There is little question that some government secrets are legitimate. But the legal and factual basis for the government's killings of its own citizens cannot be. And the CIA's aggressive, unrelenting use of official secrecy to obscure facts already in the public domain—indeed, facts placed there by high-ranking government officials — has pushed its secrecy claim far beyond its breaking point.
The CIA's position is not only bewildering; it is dangerous. It threatens to undermine the credibility of our national security officials, the integrity of the courts, and our democracy's twin commitments to truth and transparency. As the summer's NSA revelations have shown, policies based on secret powers granted by secret laws are illegitimate from the start. If the government claims the power to kill Americans on the say-so of executive officials, the debate over the legality and wisdom of this policy belongs in the open.
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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.