'Extreme Vetting' of Visitors Poses an Extreme Threat to Our Principles and Our Security
We’ve heard a lot of rhetoric about “extreme vetting” of visitors to the United States since Donald Trump it during the presidential campaign. While we still don't know precisely what the Trump administration means by the term, preliminary accounts of what it might entail make clear — no surprise here — that it’s a phenomenally bad idea.
The Wall Street Journal recently that Trump administration officials are considering subjecting visitors to a range of invasive measures, including searches of their mobile phones and contacts, mandatory disclosure of their social media passwords, and interrogation about their beliefs and opinions. According to a Department of Homeland Security official quoted in the article, the administration is considering asking visa applicants about, for instance, their views on the treatment of women in society, whether they value the “sanctity of human life,” and who they view as a legitimate target in a military operation.
First, let’s be clear: The government has been doing some of this for years. We’ve been challenging suspicionless searches of cell phones and electronic devices at the border since 2010. Our representation of American Muslims who were questioned at the border about their religious beliefs prompted DHS to undertake an investigation in 2011. And for decades we’ve opposed the government’s use of immigration policies to control Americans’ access to ideas and speech. These practices were as wrong then as they are now.
But the Trump administration’s plans would go well beyond anything we’ve seen to this point. If they are implemented, the administration’s formal policy will be to probe deeply into people’s beliefs, statements, and associations before admitting visitors to the United States.
As with other Trump administration policies, these extreme vetting measures appear to be targeted at Muslims. We know that because Trump himself , and because the Trump administration has already used border and immigration policies to target travelers from majority-Muslim countries for additional and . Discriminating against Muslims in this way is not only wrong and unlawful, but also deeply counterproductive: It stigmatizes Muslim communities worldwide and empowers those who seek to use religion to foment conflict.
These measures would also deliver a body blow to freedom of expression worldwide. If the United States — supposedly a standard bearer for human rights and freedoms — adopts what amounts to an ideological test for admission, you can bet that other governments will do the same. Repressive regimes could easily cite the United States’ example and use similar measures to target and investigate human rights and democracy activists, journalists, and lawyers. More broadly, anyone thinking of traveling across a border will have strong reasons to refrain from engaging in conversations on social media, reading online about controversial issues, or communicating with people who have criticized governments — let alone voicing criticism of governments themselves. It’s not just speculation: bears out that people self-censor and avoid controversy when they know the government is watching.
To make matters worse, the lack of published standards for this kind of scrutiny inevitably leads to arbitrary and abusive decision-making by consular officers or customs officials at ports of entry. And when people don’t know what kind of speech will get them into trouble while traveling, they self-censor to an even greater extent.
These vetting measures would be equally damaging to privacy and online security, for Americans and foreigners alike. If the U.S. government conducts what amounts to digital strip searches of travelers before allowing them to enter the United States, it will turn up troves of data that is irrelevant to border security but deeply personal and revealing, victimizing not just foreign travelers but the millions of American relatives, friends, and colleagues who are in contact with them.
Moreover, requiring travelers to disclose their social media account passwords is an affront to the most basic of cybersecurity (including principles that has embraced). It would risk compromising not only the private information accessible in those accounts, but also any data on other platforms — such as financial services or messaging — that can be accessed through those accounts.
Even setting aside the grave threat that extreme vetting poses to civil liberties and human rights, there’s no reason to believe it will do anything to improve our security. The premise of these measures is that reliable indicators exist to predict who will commit a terrorist act, but and contradict that. In any event, people with bad intentions will take steps to wipe their devices and conceal any other content that may raise concerns. Even the DHS inspector general has that there’s no effective way to analyze the massive amounts of data gleaned from social media data dumps. And it’s not hard to game an ideological test:
Yes, democracy is great. No, of course civilians are not legitimate military targets.
Yes, I believe in freedom and equality for all. Land of the free, home of the brave!
The measures that the Trump administration is planning are unnecessary, unwise, and potentially unlawful. They strike hard at principles we profess to support — freedom of belief, expression, and association — while turning the border and consular system into a dragnet for gathering intelligence on us all. Put simply, they are un-American in the extreme.
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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.