Over the past few decades, a paradigm shift has occurred within policing. Known generally as , the basic idea is that state and local law enforcement officers should integrate themselves into the communities they serve.
The idea seems simple and, in theory, uncontroversial: the better the relationship police have with the public, the easier it will be to solve problems, such as crime, that affect everyone's quality of life. But in practice, if police are not properly trained, if programs aren't closely monitored for compliance with American communities' constitutional rights, community policing can open the door to biased policing and other rights violations.
That's what happened after 9/11, when the FBI initiated a mosque outreach program in Northern California.
Californian Muslim community members may have thought that the FBI was building relationships of trust by coming to mosques to discuss problems the community might face, such as hate crimes. That's what the FBI. But what appeared initially to be a dedicated to protecting the civil rights of American Muslims developed into something very different.
In 2011, the ACLU discovered through Freedom of Information Act requests that the FBI secretly used the mosque outreach program—as well as other community outreach programs—to collect and record information about innocent Californian Muslims' speech, beliefs, and other First Amendment-protected activities in violation of the Privacy Act. It's important to stress the FBI collected information about First-Amendment protected activities—like who attended a religious service and the contents of their conversations—without any suspicion that anyone in attendance had done anything wrong, according to the documents the ACLU obtained.
The information was not stored in files documenting community outreach, but in intelligence files, which could be shared with state and local law enforcement and other intelligence agencies. Entirely unbeknownst to the Californian Muslims who opened their mosques and community organizations to the FBI, they were now at risk of being targeted for further intelligence investigation.
When we published our findings, the FBI defended itself, that its policies required an "appropriate separation be maintained between outreach and operational activities." That's all well and good, but why were these policies violated? Twenty-two members of Congress the Inspector General of the Department of Justice to investigate, as did the ACLU. To date, it doesn't appear that any investigation has begun.
The problem, as we told the DOJ Inspector General, is a deeper one. The FBI's outreach was actually undertaken under a broader FBI program called Domain Management. Under the Domain Management program, FBI agents collect information about racial and ethnic demographics and behavior and then map it based on the false assumption that there is a correlation between crime and where members of a particular religious, racial, or ethnic group live, eat, or pray. The result is disproportionate and unfair policing of only certain communities based on mass suspicion and bias.
And as the ACLU's report, Unleashed and Unaccountable: The FBI's Unchecked Abuse of Authority, makes clear, the reason FBI agents can engage in such suspicionless intelligence collection and mapping efforts is due to changes to the bureau's own internal investigative and operational guidelines, known as the (DIOG), in 2008. While FBI agents are not allowed to engage in intelligence collection and investigation based "solely" on race, the DIOG provides significant wiggle room.
According to the DIOG, FBI agents are authorized to "identify locations of concentrated ethnic communities in the Field Office's domain, if these locations will reasonably aid in the analysis of potential threats and vulnerabilities, and, overall, assist domain awareness for the purpose of performing intelligence… Similarly, the locations of ethnically-oriented businesses and other facilities may be collected." Note the use of "potential" – that's a gaping loophole. To engage in intelligence gathering, the FBI doesn't have to suspect actual wrongdoing; it merely has to decide that wrongdoing might be possible. The door to abuse is wide open.
One answer to this problem is for the attorney general to revise the Justice Department's guidance regarding the use of race by federal law enforcement to explicitly ban racial, religious, and ethnic profiling in the FBI's intelligence and investigative activities. Right now, that kind of biased profiling is prohibited in every context – because it's wrong, ineffective, and a waste of resources – except for national security and at our borders. That's another gaping loophole.
Given existing FBI authorities, there's little reason for affected communities to trust that a Trojan Horse won't be rolled into their midst when an FBI agent attends one of their gatherings. But no one should have to worry that an outstretched FBI hand of outreach and a friendly face are really a guise for domestic spying. And surely FBI agents who understand the genuine need to build trust with communities find their own efforts fettered when they are met with justifiable suspicion.
It's time for the attorney general to alleviate these legitimate concerns and change the rules that permit these discriminatory practices once and for all.
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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.