The interview below, in which Faith Braverman speaks to ACLU Senior Policy Counsel Michael German, was first published by .
Mike German is a 16-year veteran of the FBI, where he served as a special agent in domestic terrorism. His work led him to resign in 2004 after the implementation of the 9/11 Commission's reforms. He now works for the ACLU, and shared his experiences upholding his oath with The Daily Caller.
Was your work for the FBI what made you decide that their practices weren't right?
Absolutely. I had been working for the FBI for 16 years and domestic terrorism for 12 years. What I understood was that the rules that are designed to protect privacy also help the government focus on people who are real threats. It works both ways. This idea that we trade our privacy for more security is just false. Spying on you won't help the government find a terrorist. It's a waste of resources, a waste of effort that also violates our rights.
What steps did you take to combat the abuse of civil liberties?
I tried to challenge the system from within, but they don't like that. They made it very uncomfortable, so I finally realized it was time to work on the outside. I went to Congress and Sen. [Chuck] Grassley and Sen. [Patrick] Leahy, and now I work for the ACLU.
Was there a specific incident that occurred that made you want to leave the FBI?
There was a specific case that I was working on, and I'm still not allowed to talk about it in great detail. But it was a case where, again, the way that the government was putting out why they didn't connect the dots on 9/11 was they didn't have enough collection before the event. But as the 500-page book by the 9/11 commission shows, they actually had an awful lot information. It's the mismanagement that causes the problem and it's that mismanagement that leads not just to intelligence failures, but to violations of rights. Trying to point that out — that it's really how the government manages its information — is really the important thing for Congress to focus on.
What do you have in mind specifically to manage information better?
Focus security resources where you have evidence of wrongdoing, and use methods that are transparent and accountable. Name another government program where a lack of accountability leads to effective outcomes – there isn't one. The intelligence community spends billions of dollars and has no evidence to show its methods are effective. They repeatedly fail, but the response is always to give them more authority and less oversight. No wonder they keep failing. So much of what the intelligence community is doing now is based on myths. The 9/11 failures had nothing to do with criminal investigations and everything to do with mindless intelligence collection (in fact the CIA prevented FBI agents investigating the Cole bombing of getting evidence they sought, leading one agent to write that "one day someone will die" because of their obstruction) yet the reaction was to give more resources to expand intelligence initiatives rather than criminal investigations. Criminal investigations, based on reasonable suspicion and probable cause, supported by criminal prosecutions are effective and have the added benefit of strengthening the rule of law and the legitimacy of government counterterrorism measures.
Multiple terrorists have still reached their targets during the Obama administration. Why do you think people still defend the NSA after their practices clearly haven't worked?
One of the things that I hear a lot is that "Well, nothing as bad as 9/11 has happened since 9/11." But that argument would have worked on Sept. 10, 2001. They would have said, "Nothing's happened in a while, things must be going well." But what makes things go well is when there's public accountability and to make sure this is actually what the government is doing. Snowden's information shows this is not just a violation of our rights, but a waste of resources. Our founders recognized the way to make a safe, secure and free nation, and we need to go back to that.
Can you give a few examples for your assertion that the Bill of Rights is a good guide for police work?
Yes, I actually wrote a book about this called "Thinking Like a Terrorist." Basically, the Constitution and the Bill of Rights works to improve security by focusing law enforcement resources on criminal activity, rather than activity the police just don't like, and by limiting the use of techniques that tend to produce unreliable evidence. By protecting behaviors that governments often find threatening, like political organizing by oppositional groups, the First Amendment keeps police away from activities that often get them distracted from crime prevention. By limiting their use of intrusive tools to cases where they have evidence of wrongdoing, verified by an independent magistrate, the Fourth Amendment forces police to focus their efforts appropriately and compels accountability, which makes the police more efficient and effective. By prohibiting coercion, the Fifth Amendment limits false confessions. By requiring counsel, the Sixth Amendment ensures that contrary evidence is discovered and presented to prevent false convictions, which would allow the real bad guys to go unpunished. All of this makes the police more effective, but the real strength of these tools is that they give the citizenry confidence in the legitimacy of police activities, which makes them more likely to cooperate and support government initiatives. Moreover, the lack of these protections make the citizenry angry, leading to less cooperation with the police, or even violence against them.
I often tell a story about a case I worked on as an undercover agent in an anti-government militia group in Washington state. It ended with a six-week trial that was attended by a lot of people who supported the militia group ideologically. One man who was an elder in the group (but didn't know the defendants and wasn't involved in the investigation) came up to me after the trial ended, but before the verdict was returned, and asked to shake my hand. He said he sat through the entire trial and was convinced that these defendants would have hurt someone, which would have hurt his movement, so he wanted to thank me for stopping them. Here was someone predisposed to hate the government, thanking the undercover agent who infiltrated the movement because our transparent and open criminal justice process allowed him to see the evidence, appropriately challenged in an adversarial process, and become convinced against his prejudices that the defendants were guilty. That's how a government demonstrates its legitimacy, which builds a stronger and more stable democracy.
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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.