The Government Has Been Using the Border as a Dragnet to Pressure People Into Becoming Informants
Recently leaked published by show that the FBI and Customs and Border Protection have been using CBP’s authority to search travelers at the border — along with the troves of information collected as a result — to troll for potential sources and pressure people into becoming informants. We’ve gone through the documents, and they heighten our concerns that these agencies are exceeding their authority, targeting minority communities and vulnerable people, and trying to evade accountability for doing so.
These documents also highlight a broader problem with the government’s official on the use of race by federal law enforcement agencies. That guidance purports to ban racial profiling, but it includes exemptions for border screening and national security — exemptions that the leaked documents demonstrate are dangerous and unwise.
The secret documents provide a detailed description of the arrangement between the FBI and CBP. The FBI CBP on intelligence priorities, including countries of interest, and CBP provides the FBI with departing to or arriving from those countries 72 hours beforehand. The agencies then use those passenger lists and FBI databases to “target” or “spot” potential informants among the passengers. When those individuals arrive at the airport, CBP redirects them for secondary inspection — which can mean hours of intrusive questioning and searches — during which CBP officers them as possible informants and provide those assessments to the FBI. The FBI then uses the airport search as a “” for a follow-up visit to people at their homes or workplaces, during which agents them to become informants.
Most of the documents date from 2012, and while they don’t include independent confirmation that this program is ongoing, they are consistent with what we hear routinely from members of American Muslim, Arab, and South Asian communities about their treatment by the FBI and CBP.
The documents raise several serious concerns.
An End-Run Around the Fourth Amendment
First, this kind of collusion between the FBI and CBP stretches each agency’s authority to the breaking point. The FBI can’t stop and search or question people without any suspicion of wrongdoing in order to assess whether they can be pressured into serving as informants; doing so would violate the Fourth Amendment. By those stops, searches, and questioning by CBP at the border, the FBI is attempting to circumvent the Constitution.
CBP, for its part, has the authority to stop and search travelers at the border and ports of entry, but only for the purpose of locating contraband or identifying individuals who are inadmissible or engaged in criminal activity — a mandate that CBP is limited. Instead, CBP is using the border as a dragnet for intelligence gathering on innocent people — or, in the FBI’s , “[l]ooking for ‘good guys’ not ‘bad guys.’” That appears to be outside CBP’s authority.
The result is that CBP’s searches under the informant-recruitment program are much more intrusive than they would be if they stayed within CBP’s mandate. For instance, the questions CBP asks in trolling for informants are designed, according to the , to assess people’s “motivators, personality traits, vices, interests, hobbies, etc.” That’s unduly invasive, and it’s consistent with what we’ve long documented about border questioning of Muslims regarding their religious beliefs and practices — questioning that can infringe on rights guaranteed by the Constitution and federal law.
Racial and Religious Profiling
Second, the documents again show that both the FBI and CBP unfairly and discriminatorily target American Muslim communities for scrutiny and surveillance. One blatant example of that kind of biased targeting is a describing the FBI’s efforts to recruit informants within Yemeni-American communities in Buffalo and Rochester, New York. In singling out those entire communities for “source targeting,” the FBI is treating them as inherently suspicious — a practice that parallels its offensive and discriminatory “racial mapping” program.
Other parts of the documents underscore that the agencies are engaging in what amounts to racial and religious profiling. In describing the program, the first bullet in a CBP states that the agencies are “[n]ot profiling, targeting,” but the very next bullet states that they “can target on a number of factors, including . . . name origin.” That’s essentially a proxy for ethnicity, and in many cases, religion. Another directs CBP officers to assess travelers’ potential value as informants by asking them about their “tribal/clan affiliation,” again suggesting that CBP and the FBI are targeting those travelers for additional questioning and scrutiny based on their race or ethnicity.
Taking Advantage of Innocent People
Finally, the documents offer a disturbing window on how the FBI and CBP prey on people in vulnerable positions while concealing the true nature of the informant-recruitment program. The border can be an inherently coercive environment, and people transiting the border — including U.S. citizens — may feel compelled to answer whatever questions CBP officers ask them, even if they are deeply personal or irrelevant to CBP’s border-security mandate (more on your rights at airports and ports of entry here). The FBI and CBP are leveraging that dynamic in order to single out, search, and question people who, again, the agencies have done nothing wrong.
Immigrants are particularly vulnerable to this kind of coercion, which the agencies purposely exploit. The documents instruct officers to use an “” — i.e., an offer to assist in securing immigration relief if the individual serves as an informant. That raises serious legal and constitutional concerns, and it is of a piece with a secret program through which the government denies or delays citizenship or lawful permanent residence to thousands of law-abiding people without adequate due process. The FBI and CBP ratchet up the deception by that “dangle” with people “who will ultimately receive their benefit anyhow,” meaning the offer is an empty promise.
CBP that its “inspection procedures are designed to facilitate the entry of U.S. citizens and aliens who can readily establish their admissibility.” These documents belie that claim. They also serve as a stark indication of how the FBI and CBP are treating the border as a dragnet to pressure vulnerable people to spy on their neighbors and communities.
Learn More About the Issues on This Page
-
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.