It's a jubilee year for the Department of Homeland Security, where Secretary Michael Chertoff and company are celebrating their fifth year of doing what they do best - securing the homeland. On March 1, the Department marked the five-year anniversary of its Office of Civil Rights and Civil Liberties.
Since we at the ACLU have been privy to much of the Department's fine work in this area, we decided to put together a little anniversary gift: a hit parade of Homeland Security's greatest civil rights and civil liberties moments of the last five years. Cue music and the voice of : "Michael Chertoff, this is your life!"
- Katrina. No single moment exemplifies the Department of Homeland Security's incompetence like its response to Hurricane Katrina, but FEMA's mismanagement of the disaster was marked by an undercurrent of racial discrimination and human rights violations. The ACLU's National Prison Project has detailed the horrific conditions at Orleans Parish Prison during and immediately following the storm. Two years later, reports of police abuse, racial profiling, housing discrimination and other civil liberties violations were still pouring into our Louisiana affiliate. As ACLU of Louisiana Staff Attorney Katie Schwartzmann recently before the , the chaos left in the wake of Katrina led to widespread racial injustice and police brutality, which the US Government is still trying to downplay (you can read our shadow report to the UN committee here).
- Real ID. Despite protests from , opposition from the right and the left, and 21,000 public comments, the Department is pressing ahead with the national ID system known as Real ID. Perhaps more than any other Homeland Security program, Real ID would remake America into a checkpoint society, in which those who cannot "prove who they are" are relegated to second-class status. It would also create a single, interlinked database of information that would facilitate greater tracking of ordinary Americans, while subjecting us all to a far greater risk of identity theft. The Department has kicked the can down the road on Real ID over and over again, mostly because the law as written cannot be implemented, yet as recently as , Secretary Chertoff said this invasive, costly boondoggle was one of his top priorities. Auf wiedersehen privacy.
- Immigration Enforcement. Incompetent enforcement is arbitrary enforcement, and arbitrary enforcement usually becomes draconian very quickly. Thus has been the Department's bull-in-a-china-shop approach to immigration enforcement via its Immigration and Customs Enforcment (ICE) agency, which has emphasized detention and deportation, both of which have been deployed with a shocking lack of empathy and basic humanity. The ACLU revealed one side of this policy in our suit on behalf of children detained at the Hutto detention facility in Taylor, Texas. Entire families were held in prisonlike conditions, where they were offered far less than the minimum standards for movement, education, and due process. As a result of the ACLU's litigation, all 26 of our minor clients have been released, and conditions at Hutto have gradually improved. But Hutto is just the tip of the ICE-berg. The ACLU has exposed major deficits in medical treatment through litigation and Congressional testimony. As the warden of one of the largest of these facilities wrote in an affidavit two years ago (as reported by the ), "The Department of Homeland Security has made it difficult, if not impossible, to meet the constitutional requirements of providing adequate health care to inmates that have a serious need for that care." In that same article, ICE reported that 62 people had died in immigration custody since 2004, but refused to disclose any details about the nature or cause of those deaths. Finally, the ACLU of Southern California recently brought a suit on behalf of a mentally disabled American citizen, who was mistakenly deported to Mexico, a country with which he was completely unfamiliar, and where he was missing for three months before being found by his family in the US.
- Air Passenger Screening. From to , the Transportation Security Administration's feeble attempts at airport screening have been a massive exercise in public humiliation and phony security. We're all familiar with the risks posed by moisturizer and shoelaces, but the Department has also assigned terrorism "" for everyone entering the country, against an express prohibition from Congress, relied on faulty, bloated watch lists to keep dangerous elements, such as anyone named Robert Johnson, off of airplanes, and to keep track of when people we are monitoring exit the country - so we might know when a terrorist arrives, but we have no idea if he's left. None of this has resulted in better security. In a classified report leaked to in October, TSA screeners missed 60 to75 percent of bombs that were carried through security checkpoints as part of internal tests. TSA does have a spiffy new though, which makes for good reading - especially with comments like "This program is a complete waste of time and money."
- Border Security. Another top priority that has proved a miserable failure, the Department has scorned environmental regulations, private property, and the students of the University of Texas, Brownsville, whose campus will be bisected, in an attempt to build a massive physical fence along the southern border. In addition, the Department has partnered with Boeing to create a "virtual fence," made up of networked surveillance technology, much of which will extend far into U.S. territory. The latter is stalled due to technical glitches and mismanagement, but communities near the border are legitimately concerned about falling under the watchful eye of the Department's massive . In addition, new passport checks at borders have left states scrambling to supply their residents with "," containing citizenship information encoded on a Radio Frequency Identification (RFID) chip. These chips will allow Americans to be tracked wherever they go, further eroding privacy on both sides of the border.
This has been 'This is Your Life, Michael Chertoff.' Tune in next week for 'Mike McConnell, We Hardly Know Ye.'"
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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.