Just before a midnight deadline on Wednesday, the government filed its legal brief responding to the ACLU’s Freedom of Information Act lawsuit seeking information about the legal and factual basis for the deaths of three U.S. citizens in targeted killing drone strikes last fall. Our initial reaction to the brief is here, but the government’s position is so remarkable that it warrants further comment.
• We filed this lawsuit on February 1, 2012, after the government responded to our Freedom of Information Act request by refusing to confirm or deny whether it had records about the legal authority or factual basis for the targeted killing of U.S. citizens. The brief the government submitted on Wednesday (literally at the 11th hour and 57th minute) was originally due on April 13, but the government sought a series of extensions of that deadline, twice telling the court that delay was required because “the Government’s position is being deliberated at the highest level of the Executive Branch.” And what did two and a half months of deliberation produce? Virtually nothing. Not disclosure of the that provided purported legal justifications for killing U.S. citizen Anwar al-Awlaki. Not information about the process by which U.S. citizens are added to “kill lists.” Not the evidence the government relied on to justify the targeting of al-Awlaki. Not information about how and why it killed two other American citizens, including a 16-year-old boy, in drone strikes last fall. Not even an acknowledgment that the CIA conducts targeted killings at all, or that the military took part in the targeting and killing of the three U.S. citizens last year.
Here’s the change in position that officials at the “highest level” decided on: They pointlessly acknowledged that the CIA has in its files copies of recent public speeches by Attorney General Eric Holder and the President’s chief counterterrorism advisor, John Brennan. And they acknowledged that they have identified other documents relevant to our request, but refuse to discuss what those documents are about or even how many there are. The government’s brief amounts to a total secrecy snow job. In every relevant respect, the government’s stonewalling continues. Although in public speeches and in the press government officials have repeatedly acknowledged the CIA and military targeted killing programs and discussed the U.S. responsibility for killing al-Awlaki, in court the government continues to cling to a patently implausible invocation of official secrecy.
• The government’s position is strikingly broad. The government’s brief says that “whether or not the United States government conducted the particular operations that led to the deaths of Anwar al-Aulaki and other individuals named in the FOIA requests remains classified.” But if U.S. responsibility for killing al-Awlaki is classified, someone forgot to tell the Department of Defense. Within hours of al-Awlaki’s death, DOD published a stating that “[a] U.S. airstrike . . . killed Yemeni-based terrorist Anwar al-Awlaki early this morning.” President Obama and Secretary of Defense have both acknowledged that the U.S. killed al-Awlaki. At this point, refusing to say whether the U.S. was responsible for killing al-Awlaki at all, not even whether the CIA or the military was responsible, is absurd.
• The government goes even further: Incredibly, it appears not to acknowledge even that Anwar al-Awlaki is dead. In a sworn declaration filed with the government’s brief, a representative of the Department of Defense states: “I am not aware of any Executive Branch official having officially acknowledged the nature, depth, or breadth of DoD’s interest or involvement in the deaths, or lack thereof, of Anwar al-Awlaki, Samir Khan, or Abdulrahman al-Awlaki.” Deaths, or lack thereof? Maybe this is just a badly constructed sentence, but if the military is now refusing to acknowledge even that al-Awlaki is deceased, it has truly become unmoored from reality.
• More generally, the government’s claim that it cannot respond to our request “without revealing classified . . . information about the nature and extent of the U.S. government’s interest in” targeted killing of U.S. citizens is belied by the volume and frequency of statements by named and unnamed government officials about the targeted killing program generally and the killing of U.S. citizens in particular. The government is under the Freedom of Information Act by attempting to selectively disclose information to bolster its image, but refusing to provide meaningful transparency when challenged in court. As we recently explained in a related FOIA case, this is precisely what FOIA was intended to prevent.
The government’s filing is beyond disappointing. Our government persists in carrying out a policy of killing people, including U.S. citizens, far from active battlefields and in violation of international and domestic law. A handful of speeches by government officials roughly outlining legal theories do not constitute adequate transparency. The government must do better.
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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
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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.