Whatever you may think of the harms carried out by the group referred to as the Islamic State in Iraq and Syria (ISIS), the fear of ISIS is now creating a double threat to our system of checks and balances. We now have a Congress so anxious to avoid tough votes that it is ducking any decision on whether to go to war in Iraq and Syria, and a president who is grabbing unprecedented power to take the country to war all on his own.
It is a dangerous combination of congressional political cowardice and presidential overreach. Almost a week after the president's speech on a military campaign in Iraq and Syria – and almost a month and half since President Obama began airstrikes in Iraq to confront the group – Congress has yet to authorize, or reject, any use of military force against the group. With Congress set to adjourn for a seven-week recess as early as Thursday, the time to debate and vote on any timely authorization is quickly evaporating.
Failure to debate and vote on an authorization before going on recess would be an abdication of Congress's singular war-making power. Absent a sudden attack on the United States, our Constitution vests in Congress alone the authority "to declare War," and Congress needs to do so by specifying enemies and defining clear objectives to define the scope of the president's war authority.
The ACLU is urging Congress to reassert its constitutional role before it leaves for recess:
Given the immediacy, gravity, and scope of the armed conflict that the President has already entered United States armed forces into in Iraq, and his stated intent to use military force against ISIS in Syria, there is no more pressing question before Congress or the country—and no more fundamental constitutional question for you and your colleagues—than whether to authorize or reject the use of force in Iraq and Syria.
Holding an up or down vote on the president's proposed military operation would be more than an abstract practice of good governance. It would be an essential rejection of sweeping executive war authority claimed by the Obama administration. As of today, Obama administration officials have claimed that the president has authority to use the military against ISIS, under trumped-up claims of both inherent constitutional authority and statutory authority from the 2001 Authorization for Use of Military Force (AUMF).
The administration's claims are factually incorrect and fundamentally dangerous. First, the administration's view that the president has constitutional authority as commander in chief to use force against ISIS is overbroad. The president's commander-in-chief authority may only be exercised when the country has been attacked, or when there is a threat of a direct and imminent attack. It cannot be invoked when, as top administration officials have repeatedly noted, ISIS does not present an immediate threat to the nation.
The claim that the 2001 AUMF authorizes an expanded military campaign in Syria and Iraq today is equally spurious and dangerously broad. The 60-word AUMF from 2001 authorized military action against "nations, organizations, or persons" who "planned, authorized, committed, or aided the attacks that occurred on September 11, 2001, or harbored such organizations or person." In other words, the AUMF, which Congress passed in the immediate aftermath of 9/11, authorized war against the Taliban and al-Qaeda in Afghanistan.
In essence, the Obama administration is arguing that the 2001 AUMF applies to a group that didn't exist on 9/11, and isn't even associated with al-Qaeda – indeed, to a group explicitly rejected by al-Qaeda. The statute simply cannot be read so broadly. The administration's apparent interpretation of the 2001 AUMF is an impermissible unilateral declaration of war against a new enemy.
Still, because the administration has not made public the details of its interpretations of the 2001 AUMF – and because Congress and the public needs to know those details to debate the administration's claims of authority – the ACLU has filed a Freedom of Information Act request seeking those interpretations.
Having Congress and the public informed and engaged is all the more important because both the Bush and Obama administrations have argued in multiple contexts that human rights and civil liberties at home and abroad must be curtailed because — and so long as — the nation continues to be on a war footing.
For more than a decade now, the United States has relied on overly broad claims of AUMF authority to engage in often-secret military or paramilitary actions in an unknown number of countries against enemies the executive branch has refused to identify publicly, and to hold detainees in Guantánamo and elsewhere indefinitely and without charge or trial. For years, the Bush administration also used war-authority arguments to justify torture and the warrantless of Americans and non-Americans alike. The Obama administration not only failed to grapple fully with those policies – insisting, for example, that it was better to look forward and not backward at torture policies approved at the highest levels of the previous administration – it perpetuated or expanded many of the same policies.
For their part, Congress and the courts have largely deferred to the executive's claims of war-based authority, weakening the other two branches' ability to check rights violations committed by the executive. The result has been a perpetual, unchecked war, which is now expanding even further.
President Obama was right when he said in May 2013 that "the choices we make about war can impact – in sometimes unintended ways – the openness and freedom on which our way of life depends." His administration's unjustifiable and expansive reading of its war authority threatens to rob the American people of their say in choices about war. It is time for Congress to either specifically authorize or reject war in Iraq and Syria, and for the president to stay within the bounds of the Constitution in making war decisions.
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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.